IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 21ST JUNE 2010 / 31ST JYAISTHA 1932 WP(C).No. 19091 of 2010(O) -------------------------- OS.345/2009 of I ADDL.SUB COURT,ERNAKULAM .................... PETITIONER: ---------------- M/S.G.K.GRANITES,OORAKKAD, KIZHAKKAMBALAM.P.O,ERNAKULAM DISTRICT,REPRESENTED BY ITS MANAGING PARTNER,SRI.GEORGE ANTONY. BY ADV. SRI.JOSE ABRAHAM RESPONDENTS: --------------- 1. VINSONS PROJECTS INDIA PVT.LTD.,2 & 3, SHREENATH KRUPA BUILDING,CARTER ROAD,NO.5,BORIVLI EAST,MUMBAI-400 066,REPRESENTED BY ITS MANAGING DIRECTOR,VINESH R.SHAH. REPRESENTED BY ITS MANAGING DIRECTOR. 2. BHAGEERATHA ENGINEERING LTD,HAVING ITS REGISTERED OFFICE AT BHAGEERATHAZ RESIDENCY, ERNAKULAM REPRESENTED BY ITS MANAGING DIRECTOR, SRI.TOMY MADATHIL. 3. UNION BANK OF INDIA HAVING ITS R/O.AT 239,VIDHAN BHAVAN MARG,NARIMAN POINT, MUMBAI-400066,REPRESENTED BY ITS CHIEF MANAGER, PANAMPALLY NAGAR BRANCH,P.B.NO.4274,PANAMPALLY NAGAR,ERNAKULAM,KOCHI-36. 4. THE AUTHORIZED OFFICER,UNION BANK OF INDIA,PANAMPALLY NGAR BRANCH,P.B.NO.4274, PANAMPALLY NAGAR,ERNAKULAM,KOCHI-36. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No. 19091 of 2010 --------------------------------------- Dated this 21st day of June, 2010 JUDGMENT Petitioner filed O.S.No.345 of 2009 in the court of learned Sub Judge, Ernakulam for a decree for prohibitory injunction to restrain respondent No.2, a company from siphoning its funds and for other reliefs. Respondent No.2 appeared in the suit on 04-06- 2009 but, did not file a written statement in spite of sufficient opportunity given to it. Thereon it was set ex parte on 18-08-2009. Suit was listed for trial on 20-05-2010. By that time respondent No.2 filed written statement with an application to set aside the ex parte order against it. That application was opposed by petitioner contending that there is no good cause shown by respondent No.2 to set aside the ex parte order against it and that there is huge delay in filing the application. Learned Senior Advocate tells me that there was also an application filed by petitioner to summon respondent No.2 for cross examination on the affidavit it filed but learned Sub Judge without even referring to that application, casually allowed the application, set aside the ex parte order and received the written statement which has resulted in much difficulties and inconvenience to the petitioner. Learned Senior W.P.C.No.19091 of 2010 : 2 : Advocate has taken me through the order passed by the learned Sub Judge. 2. In the affidavit in support of Ext.P6, application to set aside the ex parte order against respondent No.2 in support of affidavit the deponent who is its director stated that he has been permanently staying at Bombay and often been out of that place. Counsel who was appearing for respondent No.2 in the court below while so, informed him that though the written statement was prepared and got signed, by an inadvertent mistake committed by the clerk it was not filed and it remained in the file itself. Counsel noticed that mistake only on 27-02-2010. Only on getting information from the counsel he learned that respondent No.2 was set ex parte on 18-08-2009. He therefore requested that respondent No.2 may be given an opportunity to contest the case. 3. Under Order 9 Rule 7 of the Code of Civil Procedure (for short, “the Code”) respondent has to show 'good cause' for his previous non appearance. The expression 'good cause' occurring in Order 9 Rule 7 need only a lesser degree of evidence when compared to the expression “sufficient cause” occurring in Order 9 Rule 13 of the Code. The question, what is 'good cause' is to be decided with reference to the facts and circumstances of each case. Here is a case where the director of respondent No.2 has stated in the affidavit in support of Ext.P6, application that he is W.P.C.No.19091 of 2010 : 3 : permanently staying at Bombay and that often, he will be out of station. He also stated that it is on account of inadvertent mistake committed by the clerk of the counsel that written statement prepared on behalf of respondent No.2 was not filed on time. Learned Sub Judge accepted the fact that there was delay in respondent No.2 filing the application. Learned Sub Judge also went to the extent of saying that the explanation is not that much sufficient but observed, that alone was not sufficient to defeat the application. According to the learned Sub Judge, discretionary power of the court has to be exercised. Discretion is the power to administer justice in accordance with and regulated by the known principles of law. Here is a case where admittedly there was some delay on the part of respondent No.2 in filing the written statement but it came up with an application to set aside the ex parte order against it before commencement of trial. In such a situation, it cannot be said that when learned Sub Judge allowed respondent No.2 to take part in the proceeding and received written statement any illegality or irregularity requiring correction by this court. 4. It is pointed out by learned counsel that there is no reference to the application filed by petitioner to summon the deponent for cross examination as to the statements in his affidavit in support of Ext.P6, application. Evidence on an application to set aside ex parte order can be by affidavit under Order 19 Rule 2 of W.P.C.No.19091 of 2010 : 4 : the Code when the court is authorised to take evidence by affidavit, there is no absolute right for a party to require the attendance of deponent for cross examination though, having regard to the circumstances of the case court may summon him for cross examination. Even if learned Sub Judge has not referred to the said application while disposing of Ext.P6, application I am not inclined to interfere with the discretion exercised by the learned Sub Judge. I must also bear in mind that exercise of jurisdiction under Article 227 of the Constitution is warranted when there is patent illegality or perversity committed by the subordinate court. No such situation arises here. As such, I am not inclined to think that power of this court under Article 227 of the Constitution is required to be exercised. 5. Learned Senior Advocate states that in the nature of contentions respondent No.2 has raised in the written statement, it may require time for petitioner to collect evidence in support of its case. I direct the learned Sub Judge to grant sufficient opportunity for the contestants to adduce their evidence. The writ petition is disposed of with the above direction. (THOMAS P JOSEPH, JUDGE) Sbna/-