This is an O.P.(C). challenging an order dismissing an application to set aside an ex parte dismissal in O.S.No.1019/2015. The High Court allowed the petition on condition that petitioners file a written statement and pay mediation costs.
Order in I.A.No.2531/2016 allowed on condition: pay Rs.2,000 mediation cost and file written statement within one month.
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 K.RAMAKRISHNAN
WEDNESDAY, THE 2ND DAY OF NOVEMBER 2016/11TH KARTHIKA, 1938
O.P.(C).No. 2090 of 2016 (O)
PETITIONER(S):
1. ABOOBACKER M., AGED 67 YEARS, S/O BEERANKUTTY, MANAKKATTU HOUSE,SOUTH PIPE LINE, HMT COLONY P.O., KALAMASSERY, 682033.
2. ABDUL SALAM, AGED 42 YEARS, S/O ABOOBACKER M, MANAKKATTU HOUSE, SOUTH PIPE LINE, HMT COLONY P.O., KALAMASSERY - 682033.
BY ADVS.SRI.BABU KARUKAPADATH
SMT.M.A.VAHEEDA BABU SRI.P.U.VINOD KUMAR SRI.MITHUN BABY JOHN SRI.J.RAMKUMAR SRI.N.SATHEESH KUMAR(NEMMARA) SMT.AMRIN FATHIMA
RESPONDENT(S):
P.K.UNNIKRISHNAN, AGED 65 YEARS, S/O. KELU NAIR, PRAVEEN NIVAS, SOUTH PIPE LINE, HMT COLONY P.O., KALAMASSERY-682033.
BY ADV. SRI.PEEYUS A.KOTTAM
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 2090 of 2016 (O)
APPENDIX
PETITIONER(S)' EXHIBITS
RESPONDENT(S)' EXHIBITS
NIL
//True Copy//
P.A. To Judge
Bb
K. Ramakrishnan, J.
============================== O.P.(Civil)No.2090 of 2016
============================== Dated this, the 02nd day of November, 2016.
J U D G M E N T
This is an application filed by the petitioners challenging Ext.P4 order and also the conditional order passed prior to the same, under Article 227 of the Constitution of India.
O.P.(Civil)No.2090 of 2016 : 2 :
belief that the plaintiff will be withdrawing the suit as matter is settled out of court. But, later, they came to understand that the suit was not withdrawn. They could not file written statement in time, the parties also sought
for sending the matter for mediation. However, on 03.02.2016, the petitioners were declared ex parte by the court below, immediately they filed I.A.No.2531/2016 to set aside the ex parte order and the court below allowed the petition as per order dated 08.04.2016 on condition that the petitioners shall file written statement within 30 days. But, they could not file the written statement within time. So, the court below dismissed the application vide Ext.P4 order, which is being challenged by the petitioners by filing this petition.
appearing for the petitioners and Shri.Peeyus A Kottam counsel appearing for the respondent.
O.P.(Civil)No.2090 of 2016 : 3 :
that the matter will be settled and there is no necessity to proceed with the case. But, the matter was not settled, by the time, the time expired. So, the written statement was not filed within time. If some more time is granted,
they will be able to file the written statement and they are prepared to abide by any condition imposed by this Court for that purpose.
O.P.(Civil)No.2090 of 2016 : 4 :
application, on condition that the written statement will have to be filed within 30 days from the date of order, namely, 08.04.2016. Since the written statement was not filed within time, the court below passed Ext.P4 impugned order, dismissing the application, on 21.06.2016. According to the counsel for the petitioners, even after allowing the application, courts closed for summer vacation and so they were trying to settle the case and on the assumption that the case will be settled and there will not be any necessity to proceed with the case, they could not file the written statement. However, the court below was not fully satisfied with the reasons stated, had taken lenient view and inclined to set aside the ex parte order which was passed under Order IX Rule 7 for non filing of written statement and granted time to file written statement within 30 days as a condition for setting aside the ex parte order, that order cannot be said to be harsh also. Since the direction was not complied with, the court below was justified in dismissing the application as the petitioners did not file any petition for extension of time
O.P.(Civil)No.2090 of 2016 : 5 :
as well. But, however, considering the facts and circumstances mentioned above, this Court feels that an opportunity has to be given to the petitioners to meet the case on merit by setting aside the ex parte order and allowing the petitioners to file written statement for which purpose the order passed by the court below has to set aside. But, the same can be done only on terms. So, the petition is allowed and order in I.A.No.2531/2016 in O.S.No.1019/2015 is allowed on condition that the petitioners shall pay Rs.2,000/- as cost to Kerala State Mediation and Conciliation Center, within one week from today and also file the written statement within one month from today and if the petitioners file the written statement within one month and produce the proof of payment of cost as directed, then, court below is directed to set aside ex parte order and proceed with the case and dispose of the same on merit in accordance with law.
With the above direction and observation, the petition is disposed of.
Registry is directed communicate this judgment to
O.P.(Civil)No.2090 of 2016
: 6 :
the court below, at the earliest.
Sd/-
K.Ramakrishnan, Judge.
Bb/03.11.2016
[True copy]
P.A to Judge
2 issues framed by the court
Whether the petitioners are entitled to an opportunity to file a written statement by setting aside the ex parte dismissal order passed for non-filing of written statement?
Whether alternative terms can be imposed to grant time for filing the written statement despite lack of extension application?
ABOOBACKER M.
ABDUL SALAM
P.K.UNNIKRISHNAN
K.Ramakrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
