IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932 WP(C).No. 18630 of 2010(O) -------------------------- IA NO.1392/2009 IN OS.307/2008 of MUNSIFF COURT,THODUPUZHA .................... PETITIONER(S): --------------- 1. SOMAN,S/O.MADHAVAN,KANDATHIL VENGOOR HOUSE,MATHIRAPPILLI KARA. 2. SANKARANACHARI,S/O.RAMANKUTTY, VAZHAKKALAYIL HOUSE,KOLANI KARA. BY ADV. SRI.K.K.CHANDRAN PILLAI SRI.A.S.SAJUSH PAUL RESPONDENT(S): --------------- MARIYAKUTTY,W/O.MATHEW,KANJIRATHINKAL HOUSE,PUTHUPERIYARAM,MANAKKADU. ADV. SRI.T.J.MICHAEL SRI.JOSE MATHEW (KAVALAKALAM) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.18630/2010 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF IA NO.840/2009 IN OS 307/2008 OF THE MUNSIFF COURT, THODUPUZHA DATED 10.7.2009 EXT.P2 TRUE COPY OF IA NO.843/2009 IN OS 307/2008 DATED 13.7.2009 OF MUNSIFF COURT, THODUPUZHA EXT.P3 TRUE COPY OF ORDER DATED 20.7.2009 IN IA NO.840/2009 IN OS 307/2008 OF MUNSIFF COURT, THODUPUZHA EXT.P4 TRUE COPY OF IA NO.1392/2009 DATED 6.10.2009 IN OS 307/2008 OF THE MUNSIFF COURT, THODUPUZHA EXT.P5 TRUE COPY OF ORDER DATED 29.10.2009 IN IA NO.840/2009 IN OS 307/2008 OF MUNSIFF'S COURT, THODUPUZHA EXT.P6 TRUE COPY OF ORDER DATED 29.10.2009 IN IA NO.840/2009 IN OS 307/2008 OF MUNSIFF COURT, THODUPUZHA EXT.P7 TRUE COPY OF ORDER DATED 29.10.2009 IN IA NO.843/2009 IN OS 307/2008 OF MUNSIFF COURT, THODUPUZHA //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.18630 of 2010 -------------------------------------- Dated this the 19th day of July, 2010. JUDGMENT This Writ Petition is in challenge of order on I.A.No.1392 of 2009 in O.S.No.307 of 2008 of the court of learned Munsiff, Thodupuzha. That is a suit filed by respondent for fixation of boundary, declaration of right of lateral support and other reliefs. Petitioners were directed to file written statement before 06.07.2009 but they did not do so. Petitioners however filed written statement on 20.07.2009 with I.A.Nos.840 of 2009 and 843 of 2009 to receive the written statement and extent time for filing written statement till 20.07.2009. Learned Munsiff allowed those applications on condition of payment of cost of Rs.250/- before 29.07.2009 but cost was not paid. Petitioners then filed I.A.No.1392 of 2009 to condone the delay in not paying cost. That application was dismissed by learned Munsiff. It is contended by learned counsel for petitioners that it was due to a bonafide mistake of the advocate clerk concerned in noting date for payment of cost and hence cost could not be paid before 29.07.2009. It is also stated that petitioners are prepared to pay cost. Counsel for respondent contends that there is absolute lack of bonafides on the part of petitioners in that opportunity given to them to file written statement was not availed. 2. Learned counsel for respondent has a contention that order on I.A.Nos.840 of 2009 and 843 of 2009 was a conditional order and on non- payment of cost on or before 29.07.2009 those applications stood dismissed. But the settled position of law informs me that court has power under Section WP(C) No.18630/2010 2 148 of the Code of Civil Procedure to extent time even after expiry of the period fixed. Hence that objection cannot be sustained. But it is seen that inspite of petitioners being given several opportunities they did not file written statement or pay cost of Rs.250/-. True petitioners have their own explanation for that. But for the mere reason of non-payment of cost within time stipulated I do not think it proper to deny petitioners an opportunity to contest the case particularly since learned Munsiff also was inclined to accept written statement on terms. Having regard to the facts and circumstances I am inclined to allow I.A.No.1392 of 2009 on condition that petitioners paid Rs.2,500/-(including sum of Rs.250/-) by way of cost within three weeks from this day. Resultantly this Writ Petition and I.A.No.1392 of 2009 are allowed on condition that petitioners paid to respondent through counsel in this Court R.2,500/- (Rupees Two thousand and five hundred only) within three weeks from this day and filed statement in this Court to that effect. On such payment, impugned order will stand set aside, I.A.No.1392 of 2009 will stand allowed and consequently written statement of petitioners received. In case cost is not paid as aforesaid this Writ Petition will stand dismissed in confirmation of order on I.A.No.1392 of 2009. Post after three weeks. Interim stay is extended for three weeks. THOMAS P.JOSEPH, Judge. cks