IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 25TH NOVEMBER 2010 / 4TH AGRAHAYANA 1932 WP(C).No. 28191 of 2009(O) -------------------------- CMA.44/2009 of DISTRICT COURT, KOLLAM OS.675/2005 of PRL.MMUNSIFF COURT, KOLLAM ------------------- PETITIONER: --------------- ANNEY AGED 49, W/O. WILSON, 'RHYSON HOUSE,' (THENGATH VEETTIL), PERAYAM, MULAVANA POST, KUNDRA, KOLLAMD DIST. BY ADV. MR.T.M.CHANDRAN MR.R.S.PRADEESH RAJ MR.V.A.SASIDHARAN MR.JOSEPH ALBIN NEDUNTHALLY RESPONDENT: --------------- EMELDA, AGED 52 YEARS, D/O. JANOBA, THENGALAZHIKATH VEETTIL, KOLLAM EAST VILLAGE, ULIYAKKOVIL, KADAPPAKKADA POST, KOLLAM DIST. ADV. MR.T.R.RAJAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 28191 of 2009(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: I.A.NO.18/2009 DATED 1.1.2009 FILED BY THE PETITIONER. EXT.P2: I.A.NO.19/2009 DATED 1.1.2009 FILED BY THE PETITIONER. EXT.P3: COUNTER DATED NIL FILED BY THE RESPONDENT. EXT.P4: ORDER DATED 6.4.2009 PASSED BY THE PRINCIPAL MUNSIFF COURT, KOLLAM. EXT.P5: JUDGMENT DATED 18.8.2009 PASSED BY THE DISTRICT COURT, KOLLAM. EXT.P6: AFIDAVIT DATED 13.7.2009 BY THE COUNSEL. RESPONDENT'S EXHIBITS: NIL ..... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.28191 Of 2009 ---------------------- Dated this the 25th day of November, 2010. J U D G M E N T The writ petition is filed seeking the following reliefs: i) To call for the records relating to Exhibits P1 to P5. ii) to issue appropriate writ or order and set aside Ext.P4 order and Ext.P5 judgment passed by the courts below. iii) To issue appropriate orders allowing all the prayers sought for in Exts.P1 and P2 petitions filed by the petitioner. iv) To stay all further proceedings in E.P.No.259/2008 in O.S.No.675/2005 on the file of the Principal Munsiff Court, Kollam. 2. Petitioner is the defendant in O.S.No.675 of 2005 on the file of the Principal Munsiff Court, Kollam. The respondent is the sister of the petitioner. Suit was filed by the respondent as plaintiff for eviction. The petitioner is admittedly residing in the house situated in the plaint schedule property. The petitioner entered appearance in the suit. During that time all the family members assembled together in the house of the petitioner in W.P.(C).No.28191 Of 2009 ::2:: connection with the death anniversary of the mother of the petitioner, and the relatives wanted the petitioner and respondent to settle the dispute between them. The petitioner alleges that the dispute between the parties was settled at the mediation of the relatives on that day. On that basis the plaintiff agreed to withdraw the suit whereby allowing the defendant to stay in the residential house situated in the plaint schedule property. It is further stated that believing the assurances and undertaking given by the plaintiff, the petitioner/defendant did not thereafter appear in the suit. She also took the case file from the lawyer instructing the lawyer not to defend the suit in view of the settlement of the dispute. It is also averred that subsequently, the petitioner came to know that the plaintiff did not withdraw the suit as agreed, but, prosecuted the suit and the suit is decreed ex-parte on 31.5.2006. It is stated that the petitioner came to know about the ex-parte decree only when she received notice in the execution petition which was served to the petitioner on 22.11.2008. on getting information about the ex- parte decree the petitioner filed I.A.Nos.18 & 19 of 2009 seeking W.P.(C).No.28191 Of 2009 ::3:: to set aside the ex-parte decree and to condone the delay in filing the petition to set aside the ex-parte decree. Exts.P1 & P2 are the copies of the I.As. 3. The respondent/plaintiff seriously opposed the prayer. Respondent contended that the reasons stated for belated filing of the application for setting aside the ex-parte decree is not correct. The respondent denied that there was no settlement arrived at between them. It is contented that the reasons stated is false, that there was no necessity for the lawyer of the defendant to relinguish vakalath in a case where there was an agreement to withdraw the suit. The respondent vehemently opposed the application stating that the averments in the affidavit filed in support of the I.As are not true facts and the averments was inserted to suit the petitioner's convenience. 4. The learned Munsiff dismissed the I.As stating that absolutely no evidence was adduced to prove that there was an agreement entered into between the parties for withdrawal of the suit. The court also observed that the reason shown in the petition is not sufficient or good reason to condone the delay W.P.(C).No.28191 Of 2009 ::4:: caused in the case. Both the applications were dismissed. The defendants preferred C.M.A.No.44 of 2009 challenging the order passed by the learned Munsiff. The appellate court also disbelieved the case of the defendant that there was a settlement talk between the parties at the mediation of relatives and that the applications are filed belatedly only because she came to know about the passing of the ex-parte decree at the time when she received notice in the execution petition. Thus, both courts disbelieved the version of the defendant. Having failed to rely on the averments in the affidavit filed in support of the respective petition the courts held that the petitioner is not entitled to the relief sought for. 5. Ext.P4 is the order passed by the learned Munsiff and Ext.P5 is the judgment passed by the learned District Judge. The dispute in this case is between two sisters. It is a family dispute. It is not known for what reasons the petitioner/defendant did not continue to prosecute the suit. It is a fact that the suit was not contested and one sister got an ex-parte decree against the other. I cannot re-appreciate the evidence on record in this W.P.(C).No.28191 Of 2009 ::5:: proceedings. It is a fact that suit was decided ex-parte. That means there was no consideration of the matter on merits. Taking a liberal view the courts below should have granted an opportunity to the petitioner to contest the case on terms. This is a case where the petitioner/defendant is residing in the plaint schedule property. The suit was for eviction. Unless there is some compelling reasons, normally the petitioner/defendant should have contested the suit. The reasons stated by her in the affidavit may be or may not be true. Since the suit itself is for eviction of the petitioner/defendant from the residential house situated in the plaint schedule property, in the interest of justice, an opportunity shall be given to the petitioner/defendant to contest the case on merits on payment of cost. 6. Accordingly, I.A.Nos.18 & 19 of 2009 are allowed. Exts.P4 & P5 orders are set aside, on condition that the petitioner shall pay Rs.5,000/- (Rupees Five Thousand only) as cost to the counsel for the respondent within a period of two weeks from today. If the cost ordered is not paid within the time fixed by this Court, the impugned orders shall stand confirmed. Since the W.P.(C).No.28191 Of 2009 ::6:: suit is of the year 2005, there will be a further direction to the trial court to try and dispose of the suit on an early date, at any rate, within a period of nine months from the date of receipt of a copy of this judgment. Parties shall appear before the court below on 15.12.2010. The writ petition is disposed of as above. HARUN-UL-RASHID, Judge. bkn/-