IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 WP(C).No. 1369 of 2009(K) ------------------------- IA.1027/2008 IN OS.337/2007 of SUB COURT, KALPETTA .................... PETITIONER: --------------- MARENDRAN, 48 YEARS S/O.DAMODATRAN, KIZHAKKE VELIYIL KALAVOR PO., ALAPPUZHA. BY ADV. SRI.B.PRAMOD RESPONDENT: -------------------- STATE BANK OF INDIA, AGRICULTURAL DEVELOPMENT BRANCH, ALAPPUZHA, REP. BY ITS ASST.GENERAL MANAGER ADB, ALAPPUZHA. BY ADV. SRI.K.K.CHANDRAN PILLAI, SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF I.A.NO.242/08 IN O.S.NO.337/2007 OF THE SUB COURT, ALAPPUZHA. EXT.P1A TRUE COPY OF THE AFFIDVAVIT ACCOMPANYING EXT.P1 APPLICATION. EXT.P2 TRUE COPY OF I.A.NO.10-27/08 IN THE SAID SUIT. EXT.P2A TRUE COPY OF THE AFFIDAVIT ACCOMPANYING EXT.P2 APPLICATION. EXT.P3 TRUE COPY OF THE ORDER DATEDF 5/9/08 IN I.A.NO.1027/08 IN THE SAID SUIT. HARUN-UL-RASHID,JJ. ------------------------------- W.P.(C). NO. 1369 OF 2009 ------------------------------- DATED THIS THE 13TH DAY OF SEPTEMBER, 2010 JUDGMENT The lst petitioner in I.A.No.1027/2008 in O.S.No.337/2007 on the file of the Sub Court, Alappuzha is the writ petitioner and he is one of the defendants in the suit. This writ petition is filed challenging Ext.P3 order dated 5/9/2008 passed in I.A.No.1027/08. The prayer in the writ petition is to quash Ext.P3 order and to issue a direction to the the court below to restore I.A.No.242/2008 and dispose of the same in accordance with law. 2. The defendants in the suit were set ex parte and an ex parte decree was passed on 19/12/2007. Defendants filed I.A.No.242/08 under Order IX Rule 13 of the CPC for setting aside the ex parte decree. It is averred that I.A.No.242/08 was posted to 20/2/08 for filing objection and subsequently adjourned to 29/2/08. It is stated that on that day the case was not called and on enquiry in the office of the court the applicants were informed -2- WP(C).No.1369/09 that the case would be adjourned to some other day. It is pleaded that unfortunately the above case was called on the next day i.e. on 1/3/08 without any notice and the petition was dismissed, as there was no representation. It is also pleaded that the defendants in the suit were prosecuting the application with due diligence and that there are sufficient grounds to set aside the ex parte decree passed in the above suit and therefore they requested to restore I.A.No.242/08 into file. The application to restore I.A.No.242/08 is I.A.No.1027/08. 3. The learned Sub Judge, after hearing both sides and after perusing the 'A' diary and the order, held that the reasons stated by the deponent in the affidavit are not true and observed that the assertion of the petitioners in the IA that the case was not called on 29/2/08 is very difficult to accept. The learned Judge also found that the explanation offered by the applicants is not satisfactory and by Ext.P3 order the restoration application was dismissed. This is a case where the suit was decided after declaring -3- WP(C).No.1369/09 the defendants ex parte. There was no adjudication of the dispute involved in the case on merits. The defendants in the suit filed a petition under Order IX Rule 13 of the C.P.C. to set aside the ex parte decree. That petition is numbered as I.A.No.242/08, which happened to be dismissed on a particular day, since there was no representation. The present I.A.No.1027/08 was filed to restore I.A.No.242/08. The court below on a close scrutiny found that the explanation offered by the applicants is not satisfactory. Though the petitioner filed petitions in time as observed by the learned Sub Judge, the matter was not prosecuted vigilantly. I am of the view that since the matter was not decided on merits, an opportunity shall be given to the defendants to contest the case on merits. Therefore, the reasons sated in the affidavit filed in support of I.A.No.1027/08 is accepted and I am of the view that an opportunity shall be given to the defendants to contest the case on merits. Therefore, Ext.P3 order passed by the learned Sub Judge dismissing I.A.No.1027/08 in O.S.No.337/07 is set aside and -4- WP(C).No.1369/09 I.A.No.242/08 is restored to file. The court below shall consider and dispose of IA.No.242/08 on merits in accordance with law, within a period of three months from the date of receipt of a copy of this judgment. Writ Petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv.