IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 WP(C).No. 29622 of 2008(B) -------------------------- CMA.1/2007 of ADDL. DISTRICT COURT, PATHANAMTHITTA OS.50/2001 of M.C.,PATHANAMTHITTA .................... PETITIONER(S): --------------- 1. SAJI KUMAR, SREE NILAYAM, ULLANOOR MURI, KULANADA. 2. RAJI ANILKUMAR, NISARIYIL, ULLANOOR MURI KULANADA. 3. BINDHU SAJI KUMAR, SREE NILAYAM, ULLANOOR MURI, KULANADA. BY ADV. SRI.JACOB P.ALEX RESPONDENT(S): --------------- 1. K.K.SARACHANDRA BOSE, KURIYAN PALLIL, ULLANOOR MURI, KULANADA, PATHANAMTHITTA. 2. ANIL KUMAR, NISARIYIL, ULLANOOR MURI, KULANADA, PATHANAMTHITTA. (DELETED) THE NAME OF 2ND RESPONDENT IS REMOVED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 6.2.2009 IN I.A.NO.1701/2009 ADV. SRI.RENJITH THAMPAN FOR R1 SRI.A.S.RAJENDRAN NAIR FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.29622/2008 APPENDIX PETITIONERS EXHIBITS: EXT.P1: COPY OF I.A.NO.590/2006 IN O.S.NO.50 OF 2001 ALONG WITH MEDICAL CERTIFICATE. EXT.P2: COPY OF THE ORDER IN I.A.NO.590/2006 IN O.S.NO.50 OF 2001 DATED 8.11.2006. EXT.P3: COPY OF THEH MEMORANDUM OF APPEAL IN C.M.A.NO.1 OF 2007. EXT.P4: COPY OF THE ORDER IN CMA.1 OF 2007 DATED 23.7.2008. /TRUE COPY/ P.A TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.29622 OF 2008 (B) ----------------------------------- Dated this the 24th 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 set aside Exts.P2 and P4. ii. to allow Ext.P1 and direct the Munsiff Court, Pathanamthitta to dispose O.S.No.50/2001 on merits after setting aside the ex parte decree therein. iii. to issue such other appropriate writ, order or direction as this Honourable court may deem just and fit in the circumstances of the case. 2. Petitioners are the defendants in O.S.No.50/2001 on the file of the Munsiff's Court, Pathanamthitta. Suit was one for declaration, injunction both prohibitory and mandatory and for damages. Suit was decreed ex parte. The WPC.29622/2008 2 petitioners/defendants moved an application under Order IX Rule 13 of CPC to set aside the ex parte decree. The case advanced by the petitioners was that the 2nd petitioner was prosecuting the case on behalf of all of them and since he was laid up on account of illness, he could not present and defend the case on the date when it was posted for hearing. A medical certificate was also produced to prove the illness of the 2nd petitioner/2nd defendant. The application was resisted by the plaintiff contending that there is no merit in the cause shown by the petitioners for their absence. It was further contended that there were willful laches and deliberate negligence on the part of the defendants in not appearing before the court on the date when the suit was posted for hearing. The learned Munsiff, after conducting the enquiry over the petition, was not satisfied with the cause shown by the petitioners/defendants with the result the application for setting aside the ex parte decree was dismissed. In the appeal preferred against the decree, the District Judge concurred with the findings arrived by the learned Munsiff. Impeaching the propriety and correctness of the order of the WPC.29622/2008 3 learned Munsiff and also the judgment of the District Judge the petitioners/defendants have filed the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. Having regard to the facts and circumstances presented and also the submissions made by the counsel on both sides, it appears that a further opportunity can be extended to the defendants to have a decision on merits compensating the injury that is likely to be suffered by the respondent/plaintiff in setting aside a decree which had been passed nearly eight years ago. Having regard to the fact that the respondents/plaintiff had to come from abroad to give evidence in the case, I find it would be proper and appropriate to fix a sum of Rs.10,000/- as cost payable by the petitioners/defendants as a condition precedent for setting aside the ex parte decree. The petitioners shall pay the cost as fixed above to the counsel for the respondents within one month from today. If cost is paid as directed, the ex parte decree passed in the suit shall stand set aside. If not, WPC.29622/2008 4 the writ petition shall stand dismissed without any further orders. With the above directions, this writ petition is disposed. Post for report after one month. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009