IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 21ST OCTOBER 2009 / 29TH ASWINA 1931 WP(C).No. 27285 of 2009(O) -------------------------- CMA.92/2007 of I ADDL. DISTRICT COURT, TRIVANDRUM OS.358/2001 of PRL.M.C.,TRIVANDRUM (IA 243/06) .................... PETITIONER: --------------- KRISHNANKUTTY, S/O.LATE GOPALAN, AGED57 YEARS, RESIDING AT SYAMALAYAM, POWDIKONAM, CHEMPAZHANTHY, THIRUVANANTHAPURAM. BY ADV. MR.V.AJAKUMAR MR.T.M.CHANDRAN RESPONDENT: --------------- K.SAVITHRI, D/O.KAMALAKSHY, RESIDING AT PARAMBIL PUTHENVEEDU, AYILAM, ATTINGAL, THIRUVANANTHAPURAM DISTRICT. ADV. MR.S.BALACHANDRAN (KULASEKHARAM) MR.SASTHAMANGALAM S. AJITHKUMAR MR.P.M.SANEER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.27285 of 2009 - O --------------------------------- Dated this the 21st day of October, 2009 J U D G M E N T Writ petition is filed seeking the following relief: “To pass a writ of certiorari of any other appropriate writ, order of direction setting aside the Exhibit P6 and P6 (a) orders (I.A.No.243/2006 & 244/2006) passed by the Honourable Rent Control Court, Thiruvananthapuram in O.S.No.358/2001 and Exhibit P8 order passed by the honourable 1st Additional District Court, Thiruvananthapuram in C.M.A.No.92/2007 and allow the C.M.A.No.92/2007 and set aside the exparte judgment and decree dated 31/1/2004 passed by the Rent Control Court, Thiruvanthapuram in O.S.No.358/2001.” 2. Petitioner is the defendant in O.S.No.358 of 2001 on the file of the Rent Control Court, Thiruvananthapuram. Suit was one for declaration of title and recovery of possession, and the respondent was the plaintiff. An exparte decree was passed in the suit in favour of the respondent. Admittedly, the petitioner/defendant had appeared before the trial court and sought for time for filing written statement. A final adjournment was given for filing of written statement on terms which not W.P.(C).No.27285 of 2009 - O 2 being complied with he was set exparte and later, a decree was passed in favour of the respondent. Such exparte decree was passed by the court on 31.1.2004. 21 months later, petitioner/defendant moved an application under Order IX Rule 13 of the Code of Civil Procedure with a petition to condone delay for setting aside exparte decree. That application after enquiry was dismissed by the learned Munsiff vide Ext.P5 order holding that he had not made out sufficient cause for condoning delay in entertaining the application for setting aside the expate decree. Ext.P5 order passed by the learned Munsif was challenged by way of appeal as C.M.A.No.92 of 2007 before the District Court, Thiruvananthapuram. Learned District Judge after hearing the counsel on both sides dismissed that appeal concurring with the finding entered by the learned Munsiff vide Ext.P8 judgment. Propriety and correctness of Ext.P8 judgment passed by the learned District Judge is challenged in the wit petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. W.P.(C).No.27285 of 2009 - O 3 3. Notice being given, respondent has entered appearance though counsel and filed a counter affidavit. I heard the counsel on both sides. 4. Learned counsel for the petitioner/defendant inviting my attention to Plantation Corporation of Kerala v. Hussain (1998(1) KLT 1008) and Aboo v. Ahammed (1986 KLT SN 81) canvassed for showing indulgence in favour of the petitioner/defendant submitting that on merits he has got a good case requiring adjudication by the court. Decision rendered exparte against him without providing an opportunity to present his case, according to the counsel, would amount to denial of justice. The counsel for respondent inviting my attention to the counter affidavit contended that already the decree holder had got delivery of the property through court in execution. The learned counsel for the respondent/decree holder submitted that both courts concurrently found that the petitioner/defendant had not made out sufficient cause for setting aside the exparte decree and that being so, no interference by exercise of writ jurisdiction is warranted in the facts and circumstances of the case. W.P.(C).No.27285 of 2009 - O 4 5. Having regard to the submissions made and taking note of the facts and circumstances involved with reference to the exhibits tendered in the writ petition and also Ext.P6 order of the learned Munsiff and Ext.P8 judgment of the learned District Judge, I find that no interference as requested for by the petitioner is permissible in the given facts of the case. Petitioner after having appeared before the court failed to file written statement. Whatever be the defences available to him the cause shown for setting aside the exparte decree in the application was that in view of a settlement arrived the plaintiff/decree holder agreed to withdraw the suit and he did not pursue his resistance to the suit claim. That cause canvassed by the petitioner can be taken only with a pinch of salt. Ext.P6 would show that the learned Munsiff who had an opportunity to watch his demeanour when he was examined as PW1 in the enquiry was not satisfied with the evidence let in to conclude that he was prevented by sufficient cause from appearing before the court which led to the passing the exparte decree. Even assuming that there is semblance of some truth in the case canvassed by the plaintiff W.P.(C).No.27285 of 2009 - O 5 that there was agreement between the parties by which the plaintiff agree to withdraw the suit prudence tells that he could not have counted over a period of twenty one months to enquire as to what happened to the suit. In the facts and circumstances of the case, I find that the conclusion formed by the learned Munsiff which was confirmed by learned District Judge that petitioner has not made out sufficient cause to condone delay in moving his application for setting aside the exparte decree is proper, valid and correct. Writ petition lacks merit and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-