IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 4TH JUNE 2009 / 14TH JYAISHTA 1931 WP(C).No. 33238 of 2008(F) -------------------------- AGAINST THE ORDER DATED / / IN OS 499/2001. IN FAO.56/2004 of MUNSIFF COURT, KOTTARAKKARA .................... PETITIONER(S): ------------------------ P.S.JOSE, PUTHEN VEEDU, THRIPPALAZHIKAM, KAREEPRA, KOLLAM. BY ADV. MT.P.B.SURESH KUMAR RESPONDENT(S): ---------------------------- 1. KUMARI J. PANICKER, J.P. VILLA (ALUVILA VEEDU) THRIPPALAZHIKAM KAREEPRA, KOLLAM. 2. MUMTAZ BEEGOM, CHARUVILA VEEDU, THRIPPALAZHIKAM, KAREEPRA, KOLLAM. * 3. THOMAS GEORGE, MELATHIL VEEDU, ARUMURIKKADA, THRIPPALAZHIKAM, EZHUKON, KOLLAM. 4. SUSAN GEORGE, MELATHIL VEEDU, ARUMURIKKADA, THRIPPALAZHIKAM, EZHUKON, KOLLAM.) R3 & R4 DELETED AS PER ORDER DT. 19.3.09 IN IA. 3763/2009 ADV. MR.S.SREEKUMAR FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.33238/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE IA. 286/02 IN OS. NO.499/01 ON THE FILE OF THE MUNSIFF'S COURT, KOTTARAKKARA DT. 22.1.03. P2:- COPY OF THE IA. 2314/03 IN OS. 499/01 ON THE FILE OF THE MUNSIFF'S COURT, KOTTARAKKARA, DT. 27.8.03. P3:- COPY OF THE MEDICAL CERTIFICATE PRODUCED BY THE PETITIONER ALONG WITH EXT.P2 APPLICATION DT. 15.1.03. P4:- COPY OF THE IA 2315/03 OS. NO.499/01 ON THE FILE OF THE MUNSIFF'S COURT, KOTTARAKKARA , DT. 26.8.03. P5:- COPY OF THE COMMON ORDER PASSED BY THE MUNSIFF'S COURT, KOTTARAKKARA ON EXT.P1 AND 02 APPLICATION DT. 5.7.04. P6:- COPY OF THE F.A. O. NO.56/04 BEFORE THE SUB COURT, KOTTARAKKARA DT. 7.8.04. P7:- COPY OF THE JUDGMENT IN FAO. 56/04 OF THE SUB COURT, KOTTARAKKARA DT. 31.10.08. TRUE COPY P.A. TO JUDGE TSS S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.33238 of 2008 - F --------------------------------- Dated this the 4th day of June, 2009 J U D G M E N T This writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs: “i) To set aside Ext.P5 common order passed by the Munsiff Court, Kottarakkara on Exts.P1 and P2 applications and Ext.P7 judgment of the Sub Court, Kottarakkara in F.A.O.No.56/2004. ii) To allow Exts.P1 and P2 applications filed by the petitioner in O.s.No.499/2001 on the file of the Munsiff Court, Kottarakkara as prayed for.” 2. Petitioner is the 1st defendant in O.S.No.499/2001 on the file of the Munsiff court, Kottarakkara in which an ex-parte decree of injunction was passed against him and the other three defendants. A petition moved by the petitioner for setting aside the ex-parte decree with a petition to condone delay, after enquiry, was dismissed by the learned Munsiff holding that he had not made out sufficient cause for his absence when the case stood posted for hearing. The appeal preferred by the petitioner against the order of the learned Munsiff was also unsuccessful as W.P.(C).No.33238 of 2008 - F 2 the appellate judge concurred with the views taken by the learned Munsiff and dismissed the appeal. Petitioner approached this Court with the above writ petition invoking the supervisory jurisdiction of this Court, submitting that the order passed by both the courts below disallowing his prayer for setting aside the ex-parte decree is unsustainable under law and facts. 3. I heard the counsel on both sides. 4. Non-production of a medical certificate and proving that certificate through a doctor to establish the case pleaded in the application for setting aside ex-parte decree persuaded the learned Munsiff to hold that the petitioner has not established sufficient cause for his absence. That view taken by the learned Munsiff found approval with the appellate judge also. From the submissions made at the bar, it is found that the petitioner entered appearance but failed to file written statement on the hearing date and consequently he was set ex-parte and resultantly, ex-parte decree was passed against him. One difficulty was pointed out by the learned counsel for respondent in interfering with the orders of the learned Munsiff and also the W.P.(C).No.33238 of 2008 - F 3 learned District Judge stating that the decree holder/plaintiff had already initiated proceedings in execution, since the decree granted had been flagrantly violated by the defendants. In the suit, a decree for prohibitory injunction was sought against the defendants in respect of a pathway and after the decree was passed, it is submitted by the learned counsel for the petitioner/plaintiff that the pathway is obstructed putting up a construction. So much so, it is submitted that if any indulgence in favour of the petitioner is shown by this Court and if the decree passed ex-parte against them is set aside that would enable the defendants to escape from the penalty for violating the injunction as the execution proceedings taken from the decree would no longer survive. I take note of the submissions made by the learned counsel for the plaintiff, which deserve due consideration in passing appropriate orders in the writ petition. Whatever be the reason set out by the 1st defendant for setting aside the ex-parte decree, prima facie, it is evident that there was no culpable negligence or deliberate latches on his part in not filing the written statement in time, leading to an ex-parte W.P.(C).No.33238 of 2008 - F 4 decree in the suit subsequently. Perhaps he failed to establish the case pleaded as to his illness with cogent and convincing evidences. So far as practicable a decision on merits is desirable. Where there is no reason to prove that there was culpable latches on the part of the party in appearing before the court resulting in an ex-parte decision against him, an opportunity should be provided to him if necessary on term compensating the injury caused to the other side. So much so, taking into consideration, the submissions made and facts and circumstances involved, it is ordered that the ex-parte decree passed against the petitioner/1st defendant, and he alone, shall stand set aside on condition of the petitioner paying a sum of Rs.5,000/- within a month to the counsel appearing for the plaintiff. As regards the execution proceedings taken on the basis of the ex-parte decree on the ground that the defendants have filed the decree, I find that appropriate orders are also necessary. It is open to the petitioner to move an application under Order XXXIX Rule 2A, after the suit is restored to file. As regards the violation of decree of injunction, the learned Munsiff shall take note that a W.P.(C).No.33238 of 2008 - F 5 decree an injunction was in force, pass appropriate orders, after enquiry, with the suit, but by separate order. Learned Munsiff shall given priority for hearing of the suit and take expeditious steps for its disposal and shall be disposed, at any rate within six months from the date of receipt of a copy of this judgment and restoring of the suit on file, but, after affording reasonable opportunity to both sides to establish their respective case. If the cost is not paid as directed within the time stipulated, the writ petition shall stand dismissed. The writ petition is disposed of as indicated above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-