IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 WP(C).No. 35592 of 2008(K) ----------------------------------------- PETITIONER(S): ------------------------- 1. LASAR NADAR WILSON, AVIKUZHI VEEDU, OLATHANNI, KADAVAVARAN DESOM, NEYYATTINKARA PAKUTHY. 2. SHAJI, S/O.WILSON, AVIKUZHI VEEDU, OLATHANNI, KADAVAVARAN DESOM, NEYYATTINKARA PAKUTHY. BY ADV. MR.R.GOPAN RESPONDENT(S): -------------------------- NAMASIVAYAM SANALKUMAR, KALUVILA PUTHEN VEEDU, VANNICODE, PARIASSALA PAKUTHY FROM KUTTIYANIVILA VEEDU, NIDRAVILA, EZHU DESOM, PAKUTHYY, VILAVANCODE TALUK, KANYAKUMARI DISTRICT. BY ADV. MR.G.S.REGHUNATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.35592/2008K APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE DECREE DTD. 12/09/2001 IN O.S.NO.620/1999 OF THE 1ST ADDITIONAL MUNSIFF, NEYYATTINKARA. P2: COPY OF I.A.NO.3718/2003 DTD. 27/06/2003 ON THE FILE OF 1ST ADDITIONAL MUNSIFF, NEYYATTINKARA. P3: COPY OF OBJECTION FILED BY THE PLAINTIFF/RESPO.NO.3718/03 ON THE FILE OF 1ST ADDITIONAL MUNSIFF, NEYYATTINKARA. P4: COPY OF I.A.37/7/2003 IN O.S.NO.620/1999 OF THE 1ST ADDITIONAL MUNSIFF, NEYYATTINKARA DTD. 27/06/2003. P5: COPY OF THE OBJECTION FILED BY THE RESPONDENT IN I.A.NO. 3317/2003 IN O.S.NO.620/1999. P6: COPY OF THE ORDER IN I.A.NO.3717/03 & 3718/03 IN O.S.NO.620/1999. P7: COPY OF THE JUDGMENT DTD. 25/09/2008 IN CMA.NO.13/2007 PASSED BY THE SUB JUDGE, NEYYATTINKARA. RESPONDENT'S EXHIBITS: R1(A): COPY OF THE JUDGMENT DTD. 12/09/2001. R1(B): COPY OF THE EXECUTION PETITION DTD. 21/01/2003. R1(C): COPY OF ORDER DTD. 28/09/2004 IN WPC.NO.27194/2004. R1(D): COPY OF THE JUDGMENT DTD.1/11/2004 PASSED IN WPC.NO.27194/04. R1(E): COPY OF THE RECEIVER PETITION DTD. 2/03/2005. R1(F): COPY OF THE EXHIBIT A1 PRODUCED IN THE LOWER COURT. R1(G): COPY OF THE EXHIBIT A2 PRODUCED IN THE LOWER COURT. R1(H): COPY OF THE EXHIBIT A3 PRODUCED IN THE LOWER COURT. R1(I): COPY OF THE JUDGMENT DTD.11/01/2007 IN O.S.NO.467/08 OF THE ADDL.MUNSIFF-II, NEYYATTINKARA. R1(J): COPY OF THE ORDER DTD. 2/08/2007 IN I.A.867/07 IN O.S.467/03 OF THE ADDL.MUNSIFF-II, NEYYATTINKARA. /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.35592 OF 2008 (K) ----------------------------------- Dated this the 12th day of June, 2009 J U D G M E N T The writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs: i. to issue a writ of certiorari or order or direction and quash/set aside Exts.P1, P6 and P7 orders. ii. to issue an order and allow Exts.P2 and P4. iii. to issue such other writ, direction or order this Honourable Court deem fit and proper for the circumstances in this case. 2. Petitioners are the defendants in O.S.No.620/1999 on the file of the 1st Additional Munsiff Court, Neyyattinkara, in which, an ex parte decree was passed against them. Respondent in the writ petition filed the above suit for declaration of title, fixation of boundary, injunction and for WPC.35592/08 2 compensation. Ext.P1 is the copy of the decree passed in that suit. Suit claim was based on a sale deed executed by the defendants conveying the schedule properties having an extent of one acre to the plaintiff. Three years after the passing of the ex parte decree the petitioners moved an application for setting it aside with a petition to condone delay. Ext.P2 is the copy of that application. Respondent/plaintiff resisted the relief claimed in the petition filing objections. Ext.P3 is the copy of the objections. The learned Munsiff, after conducting an enquiry and hearing the counsel on both sides, arrived at the conclusion that the petitioners have not made out sufficient cause for condoning the delay and also for setting aside the ex pate decree, and in that view of the matter, both the applications were dismissed. Ext.P6 is the copy of that order. Aggrieved by Ext.P6 order, petitioners preferred an appeal as C.M.Appln.No.13/2007 before the Sub Court, Neyyattinkara. The learned Sub Judge, after hearing the counsel on both sides and appreciating the materials concurred with the view formed by the court below that sufficient cause had not been made out by the petitioners WPC.35592/08 3 to set aside the ex parte decree for condoning the delay. Impeaching the correctness and propriety of that decision, petitioners have preferred this writ petition invoking the supervisory jurisdiction of this Court vested under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. Both sides have produced a number of documents to substantiate the respective case canvassed by them, with the petitioners urging that there is sufficient cause for condoning the delay and setting aside the ex parte decree, and the respondent reiterating his contentions that this is a case where the process of the court has been repeatedly abused by the petitioners by filing petitions one after the other so that he is prevented from enjoying the fruits of a validly obtained decree. Perusing Ext.P6 order and also Ext.P7 judgment passed by the two courts below, I find the materials tendered by the petitioners to substantiate their case of having sufficient cause for the non-appearance on the date the suit was fixed for hearing, was meticulously analysed by both the WPC.35592/08 4 courts to reach the conclusion that he had no cause leave alone sufficient cause for setting aside the decree passed. It is seen from Ext.P7 judgment that suit was decreed ex parte twice and on the first occasion, the decree was set aside showing indulgence, giving another opportunity to contest the suit claim. When the suit was taken up after setting aside the decree, default was again committed by the defendants/petitioners herein and the second time an ex parte decree was rendered against them. Over and above these aspects it has also been brought to my notice that the petitioners had filed a suit a day before the filing of the application moved under Order IX Rule 13 of CPC setting forth a case that the sale deed executed in favour of the plaintiff on which he based the suit claim and obtained the ex parte decree was not binding on them. That suit was also later dismissed for default. The respondent has produced copy of the judgment dismissing that suit, that is, Ext.R1 (i). A restoration application was moved by the present petitioners to restore that suit but that also was dismissed for default. Copy of that order is produced as Ext.R1 (j). So, what is borne WPC.35592/08 5 out by Ext.R1 (i) and Ext.R1 (j) is that whatever contentions that could have been set up by the defendants in the suit in which ex parte decree had been passed was presented by them by way of a separate suit and it ended in dismissal for default. So even if the ex parte decree is set aside holding that the petitioners had made out sufficient cause, no purpose will be served, but only wasting the time of the court. Further, after going through Ext.P6 order and Ext.P7 judgment, I find both the courts below arrived at the finding that the petitioners had not made out sufficient cause after appreciating the materials tendered in the enquiry on the application. There is no impropriety or illegality in Ext.P6 order and Ext.P7 judgment, and the writ petition is found to be devoid of any merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009