Kerala High Court
State Of Kerala vs *1. Chinnamma Antony on 10 January, 2012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
MONDAY,THE 3RD DAY OF FEBRUARY 2014/14TH MAGHA, 1935
WP(C).No. 25813 of 2009 (O)
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OS.NO. 137/2008 OF PRINCIPAL SUB COURT,ALAPPUZHA
PETITIONER(S):
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1. STATE OF KERALA, REP.BY PRINCIPAL SECRETARY,
REVENUE DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM.
2. THE DISTRICT COLLECTOR, ALAPPUZHA.
3. THE DEPUTY TAHSILDAR (R.R), KUTTANAD.
4. THE VILLAGE OFFICER, KAVALAM, ALAPPUZHA.
BY SR GOVERNMENT PLEADER SRI.VIJU THOMAS
RESPONDENT(S):
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*1. CHINNAMMA ANTONY, MAVUTHRA,
KAINADY.P.O., KAVALAM, KUTTANADU TALUK,
ALAPPUZHA.(DIED) R2 TO R6 RECORDED AS LEGAL HEIRS
2. ANTONY ISSAC, MAVUTHRA, KAINADY.P.O.,
KAVALAM, KUTTANADU TALUK,ALAPPUZHA.
3. JACOB ANTONY, MAVUTHRA, KAINADY.P.O.,
KAVALAM, KUTTANADU TALUK, ALAPPUZHA.
4. MERCY ANTONY,MAVUTHRA, KAINADY.P.O.,
KAVALAM, KUTTANADU TALUK, ALAPPUZHA.
5. JOJO ANTONY, MAVUTHRA, KAINADY.P.O.,
KAVALAM, KUTTANADU TALUK, ALAPPUZHA.
6. JOHN MARTIN, MAVUTHRA, KAINADY.P.O.,
KAVALAM, KUTTANADU TALUK, ALAPPUZHA.
*R2 TO R6 ARE RECORDED AS LEGAL REPRESENTATIVES OF THE
DECEASED FIRST RESPONDENT AS PER ORDER DATED 10/1/2012
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WP(C)NO.25813/2009
**ADDL.R7 IMPLEADED
**ADDL.R7: LEELAMMA FRANCIS @ ANNAMMA ANTONY @ ANNAMMA ANTO,
THOTTUNKAL HOUSE, ARAKULAM.P.O.,MOOLAMATTOM.P.O.,
THODUPUZHA, IDUKKI DISTRICT.
**ADDL.R7 IS IMPLEADED AS THE LEGAL REPRESENTATIVE OF THE
DECEASED R1 AS PER ORDER DATED 10/1/12 IN IA.NO.11105/11
***ADDL.R8 IMPLEADED
***ADDL.R8: LAL.T.MANI, S/O.T.R.MANI, AGED 37 YEARS,
RAMANILAYAM, KAVALAM, KUTTANAD, ALAPPUZHA.
***ADDL.R8 IS IMPLEADED AS PER ORDER DATED 3/2/2014 IN IA.NO.13913/2013
R2 BY ADV. SRI.R.AZAD BABU
ADDL.R8 BY ADV. SRI.A.N.RAJAN BABU
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 03-02-2014, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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WP(C)NO.25813/2009
APPENDIX
PETITIONER'S EXHIBITS:
P1 COPY OF THE INTERLOCUTORY APPLICATION NO.2399/2008 DATED 11/11/2008
P2 COPY OF THE DETAILED WRITTEN STATEMENT
P3 COPY OF THE ORDER DATED 26/02/2009
RESPONDENT'S EXHIBITS: NIL
/TRUE COPY/
P.S.TO.JUDGE
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A.MUHAMED MUSTAQUE, J.
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W.P.(C)No.25813 of 2009
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Dated this the 3rd day of February, 2014
JUDGMENT
This writ petition under Article 227 of the Constitution of India arises from an order on I.A.No.2399/2008 in O.S.No.137/2008 filed by the petitioners, who are defendants in the suit, under Order 9 Rule 7(1) and Section 151 of the Code of Civil Procedure (Ext.P3).
2. Heard the learned Government Pleader appearing for the petitioners, learned counsel for respondents 1 to 6 and additional respondent No.7 and the learned counsel for the additional eighth respondent.
3. The learned Sub Judge while proceeding with the matter, found that defendants 1 to 3 were set ex parte on 29/05/2008 and not on 02/08/2008 and for this reason and also for the reason that affidavit was not sworn for defendant No. 4, the applications for condonation of delay and application to set aside ex parte order were dismissed. In fact, it is admitted at Bar, it was on failure to file written statement within time granted, defendants were set ex parte. The application to set aside ex parte order was accompanied by an application to condone delay about 70 days. It is admitted by the parties that written statement has been filed. The copy of W.P.(C).No.25813/2009 -:2:- written statement is produced in this writ petition as Ext.P2. From the perusal of affidavit and petition, it can be seen that application was filed on behalf of defendant No.4 also.
4 . While dismissing the application, court below did not advert to the scope of application under Order 9 Rule 7 of the Code of Civil Procedure. Court cannot dismiss an application on a mere error of facts that exists in the application, unless such facts are material and capable to throw out applicant from the relief to be granted in terms of Order 9 Rule 7 of Code of Civil Procedure Code. These are errors not germane for considering such application. It seen from Ext.P2 written statement that same was filed along with application to set aside ex parte order. Since court below having found no other reason to dismiss the application, I find order passed by the court is liable to be set aside.
5. In the above circumstances, I find that there were no circumstances warranting dismissal of the applications, especially, when defendants have filed a written statement as per Ext.P2.
In the result, this writ petition is allowed. Ext P3 is set aside The application filed by the petitioners to set aside order of ex parte and W.P.(C).No.25813/2009 -:3:- application to condone the delay, stands allowed. There shall be a direction to receive the written statement (Ext.P2) and to proceed with the trial in accordance with law. No costs.
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A.MUHAMED MUSTAQUE, JUDGE ms