High Court dismissed a civil writ petition under Article 226 for quashing an order dismissing applications to set aside an ex-parte decree. The Court held there was no illegality or irregularity as the petitioner failed to utilize opportunities granted to prove his illness.
The writ petition under Article 227 of the Constitution of India was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR
WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930
WP(C).No. 12619 of 2008(B)
-------------------------CMA.13/2006 of SUB COURT, OTTAPPALAM EP.113/2007 of MUNSIFF COURT, ALATHUR
PETITIONER:
P.K.KANNADASAN, AGED 46 YEARS, S/O.KARUPPUSWAMI, VANDIKKARA HOUSE, KOTTAYIL AMSOM DESOM, ALATHUR TALUK, PALAGHAT DISTRICT.
BY ADV. SRI.A.C.DEVASSIA
RESPONDENTS:
BY ADV. SRI.RAJESH SIVARAMANKUTTY FOR R2 SRI.E.R.VENKATESWARAN FOR R1
SRI.R.SREEHARI FOR R1
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
APPENDIX IN W.P.(C) No.8981/2008
EXT.P5 PHOTO COPY OF THE JUDGMENT IN C.M.A.NO.13/2006 AND 14/2006 OF SUB COURT, OTTAPALAM DATED 7.3.2008
//TRUE COPY//
P.A. TO JUDGE.
M.SASIDHARAN NAMBIAR, J.
W.P.(C) No.12619 of 2008
Dated this the 10th June, 2008.
J U D G M E N T
Petitioner is the defendant in O.S.No.485/03, on the file of the Munsiff Court, Ottappalam. First respondent is the plaintiff. An ex-parte decree was passed against the petitioner, on his failure to appear and contest the case on 15.2.2006. Petitioner thereafter filed I.A.No.845/2006, an application under Section 5 of the Limitation Act to condone the delay, and I.A.No.846/2006, a petition under Order IX Rule 13 of Code of Civil Procedure to set aside the ex-parte decree. The case of the petitioner was that he had a fall and sustained grievous
sprain on his left ankle, and he was laid up and could not appear. Grounds stated in the petition were opposed by the first respondent. Learned Munsiff dismissed the petitions finding that there is no sufficient cause to condone the delay or to set aside the ex-parte decree. Petitioner challenged that order before the Sub Court, Ottappalam, in C.M.A.Nos.13/2006 and 14/2006. Under Ext.P5 order,
learned Sub Judge dismissed both the petitions. Meanwhile, the decree was executed and the property was sold and was purchased by
W.P.(C) No.12619/2008
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second respondent. This petition is filed under Article 227 of the Constitution of India impleading the auction purchaser as second respondent to quash Ext.P5 order.
W.P.(C) No.12619/2008
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such circumstances, there is no illegality or irregularity in Ext.P5 order warranting interference and petition is only to be dismissed.
W.P.(C) No.12619/2008
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the prayer of the petitioner, petitions were re-opened and further opportunity was granted. Petitioner did not avail of the opportunity and did not examine himself to prove that he was laid up. Therefore, it was found that there was no sufficient cause to condone the delay or to set aside the ex-parte decree. In such circumstances, I do not find any reason to interfere with Ext.P5. Petition is dismissed.
M.SASIDHARAN NAMBIAR, JUDGE
nj.
2 issues framed by the court
Whether the High Court should quash the Sub Court’s order dismissing the petition to set aside an ex-parte decree and condone delay.
Whether sufficient cause was shown for the petitioner’s failure to appear or produce evidence regarding his alleged illness.
P.K.Kannadasan
Kochumol
Radhakrishnan
Second Respondent
M.Sasidharan Nambiar
S.Rajendran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
