IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 18TH DECEMBER 2009 / 27TH AGRAHAYANA 1931 WP(C).No. 30325 of 2009(O) -------------------------- OS.309/2008 of I ADDL.SUB COURT,ERNAKULAM .................... PETITIONER(S): --------------- 1. LEELA RAJAGOPAL, AGED 62 YEARS, W/O.RAJAGOPAL, 18/1662, NEW BUILDING, PUTHIYAPALAM, CALICUT-673 002. 2. RAJAGOPAL, AGED 65 YEARS, 18/1662, NEW BUILDING, PUTHIYAPALAM, CALICUT-673 002. 3. RAJESH RAJAGOPAL, AGED 37 YEARS, S/O.RAJAGOPAL, RESIDING AT 29/1190A, AYILYAM, MANGOTTU VAYAL, KOTTOOLI, CALICUT-16. BY ADV. SRI.T.K.VIPINDAS RESPONDENT(S): --------------- M/S.VERTIX SECURITIES LTD., THOTTATHIL TOWERS, 2ND FLOOR, MARKET ROAD, ERNAKULAM. ADV. SRI.K.GOPALAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.30325/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE I.A.NO.7628/09 EXT.P2: COPY OF THE I.A.NO.7629/09 EXT.P3: COPY OF THE I.A.NO.7630/09 EXT.P4: COPY OF THE I.A.NO.7696/09 EXT.P5: COPY OF THE I.A.NO.7694/09 EXT.P6: COPY OF THE I.A.NO.7702/09 EXT.P7: COPY OF THE I.A.NO.7704/09 EXT.P8: COPY OF THE I.A.NO.7701/09 EXT.P9: COPY OF THE I.A.NO.7703/09 /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.30325 OF 2009 (O) ----------------------------------- Dated this the 18th day of December, 2009 J U D G M E N T Petitioners are the defendants in O.S.No.309 of 2008 on the file of the Principal Sub Court, Ernakulam. The above suit is one for money, and the respondent is the plaintiff. Resisting the suit claim, petitioners have filed separate written statements. When the suit came up in the list for trial, the petitioners' counsel was not ready to cross examine the plaintiff, but, sought for removal of the case from the list. That application being disallowed and on the default of the defendants to cross examine the plaintiff, the 1st and 2nd defendants were set ex parte. The 3rd petitioner/3rd defendant on the same day filed his written statement with a petition seeking enlargement of time as the time for delivery of such defense had expired long ago. Now, he too has joined the other petitioners in challenging the order passed by the learned Sub Judge dismissing the application moved for WPC.30325/09 2 removal of the case from the list. They have also filed a petition to decide the maintainability of the suit as a preliminary issue which was also turned down. Challenge is raised against the order passed in that application as well. 2. I heard the counsel on both sides. Having regard to the submissions made and taking note of the facts and circumstances presented, I find so far as the petitioners 1 and 2 are concerned, indulgence can be shown to them to have a decision of the suit on merits, but, of course, compensating the injury that is likely to be suffered by the plaintiff in the protraction of the litigation primarily caused on account of their latches and default in prosecuting their defense raised in the suit. Suit claim is found to be more than Rs.6 lakhs. Plaintiff is stated to be a share broker and the suit claim is raised in respect of the business transactions with the petitioners/defendants. Taking into account that aspect as well, it is ordered that the ex parte order passed against the petitioners 1 and 2 shall stand vacated and they will be extended an opportunity to contest the suit on merits subject WPC.30325/09 3 to payment of cost of Rs.6,000/- (Rupees six thousand only) to the plaintiff. Cost ordered as above shall be paid to the counsel appearing for the respondent before this Court within two weeks from the date of this judgment and a memo filed immediately thereof. In default of the payment of the cost as ordered, the writ petition shall stand dismissed without any further order. So far as the 3rd petitioner is concerned, no indulgence can be shown to him, but, it is open to him to seek permission to the court below to adopt the contentions raised by the other defendants in the suit. The court below is directed to expedite the trial of the suit and dispose it of without delay, after providing sufficient opportunity to both sides, at any rate, before the closing of the courts for the mid summer vacation. With the above direction, this writ petition is closed. Post for compliance report after two weeks. S.S.SATHEESACHANDRAN JUDGE prp