IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 5TH NOVEMBER 2007 / 14TH KARTHIKA 1929 WP(C).No. 1648 of 2007(U) ------------------------------------- OS.492/2002 OF II ADDL.SUB COURT,TRIVANDRUM. .................... PETITIONER: ------------------- GEETHAKUMARI N.K., AGED 45 YEARS, D/O. KAMALAMMA K., BANK EMPLOYEE, RESIDING AT NO.29, MLRA, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 011. BY ADV. SRI.MANJERI SUNDERRAJ, ADV. SRI.B.K.RAJAGOPAL. RESPONDENT: ---------------------- R.JEEVAN, AGED 43 YEARS, S/O. P.KARMACHANDRAN, BUSINESS, RESIDING AT T.C.27/750, SIVODAYAM, VANCHIYOOR, THIRUVANANTHAPURAM-695 035. BY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/11/2007,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.1648 OF 2007 =========================== Dated this the 7th day of August, 2008 JUDGMENT This petition is filed under Article 227 of the Constitution of India challenging Exts.P9 and P10 orders passed by the Sub Court, Thiruvananthapuram in I.A.3304/2004 and 4257/2004. O.S.492 of 2002 is a suit for specific performance of an agreement for sale. That suit was decreed ex parte on 31.1.2004. Respondent thereafter filed Ext.P5 petition (I.A.3304/2004) on 31.7.2004 to set aside the ex parte decree under Rule 13 of Order IX of Code of Civil Procedure contending that respondent did not receive any summons and came to know about the decree only when he returned back home on 30.7.2004. Ext.P8 (I.A.4257/2004) was subsequently filed on 29.9.2004 under section 5 of the Limitation Act to condone the delay in filing Ext.P5 application. Petitioner filed objection to both the petitions. Learned Sub Judge allowed the W.P.(C)1648/2007 2 applications under Exts.P9 and P10 orders. Under Ext.P9 order the delay was condoned as follows:- “Heard. I.A. Allowed on a costs of Rs.500/-. For payment of costs. Call on 17.8.2006.” On 19.8.2006 I.A.3304/2004 was allowed under Ext.P10 order and the ex parte order was set aside. The order reads:- “Costs remitted. I.A. Allowed. Ex parte order set aside as prayed for. I.A. Closed. Learned counsel appearing for petitioner argued that learned Sub Judge did not consider the objections filed by the petitioner to both the petitions and question whether there is sufficient cause to condone the delay in filing the application or to set aside the ex parte decree was not considered at all. It was also argued that I.A.3304/2004 was allowed on the W.P.(C)1648/2007 3 ground that cost was remitted without considering the question whether there was sufficient cause for the absence of the respondent when the suit was decreed ex parte. 2.Learned counsel appearing for respondent argued that respondent did not receive any summons and came to know about the proceedings only when he returned back to India and immediately petitions were filed and in such circumstance, the ex parte decree was set aside after condoning the delay. Learned counsel appearing for petitioner submitted that Ext.P2 letter sent by the respondent to his sister-in-law a practising lawyer which was produced before the Sub Court by the said sister-in-law on 15.10.2003 establish that respondent was aware of the suit and in such circumstance learned Sub Judge was not justified in condoning the inordiante delay. 3. There is force in the submission made by learned counsel appearing for the petitioner. When the ex parte decree is sought to be set aside W.P.(C)1648/2007 4 contending that respondent/defendant did not receive the summons and was not aware of the suit or the decree and petitioner plaintiff resisted the petition contending that respondent was aware of the suit and in fact authorised his sister-in- law to appear on his behalf and she appeared before the court, learned Sub Judge was not justified in setting aside the ex parte decree without considering these facts. Ext.P10 order shows that learned Sub Judge did not consider either the sufficiency of the ground stated in the petition or the objection raised by the petitioner. Instead petition was seen allowed as if cost was awarded earlier. In that application no cost was awarded. Cost was awarded in the application to condone the delay. Even if the delay is condoned, court has to satisfy that there are sufficient grounds to set aside the ex parte decree. There was not even an attempt to consider that question. Ext.P10 order on the face of it is not sustainable. W.P.(C)1648/2007 5 4. Similarly Ext.P9 order shows that contention raised by the respondent to condone the delay or the objection raised by the petitioner why the delay cannot be condoned, were not considered by learned Sub Judge. Instead without considering any of the grounds, petition is seen allowed on terms. Ext.P9 order also bad in law. 5. Exts.P9 and P10 orders are quashed. Sub Judge, Thiruvananthapuram is directed to reconsider I.A.4257/2004 and I.A.3304/2004 and pass appropriate order in accordance with law. Writ Petition is disposed of as above. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006