OP(C) NO. 340 OF 2019
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
OP(C) NO. 340 OF 2019
AGAINST THE ORDER IN IA.3123/2018 IN OS 125/2018 OF II
ADDITIONAL SUB COURT,ERNAKULAM
PETITIONER/S:
1. ZERITA ASHLEN ROCHA, AGED 32 YEARS, D/O. ASHLEN
ANTONY ROCHA, RESIDING AT 10/152, 4E, INFRA VANTAGE,
CSEZ, CHITTETHUKARA, PINCODE - 682037, KANAYANNUR
TALUK, ERNAKULAM
2. STELLA MARIE ASHLEN, AGED 55 YEARS, W/O. ASHLEN
ANTONY ROCHA, RESIDING AT HOUSE NO.19/89 C2, FLAT
NO.1C TULASI PLUS SQUARE, PUTHUSSERY MUGAL, PUTHIYA
ROAD, KANGARAPADY, PINCODE - 682 021, KANAYANNUR
TALUK, ERNAKULAM DISTRICT
BY ADVS.
SRI.K.M.ANEESH
SRI.K.SANTHOSH KUMAR (KALIYANAM)
SRI.ADARSH KUMAR
SRI.BIJU VARGHESE ABRAHAM
SRI.DILEEP CHANDRAN
SRI.SHASHANK DEVAN
RESPONDENT/S:
ANN MARY VARGHESE, AGED 26 YEARS, W/O. THOMAS FRANCIS
VADKKEL, ERINJERI HOUSE, SUNRISE, MARTHABHAVAN ROAD,
KIZHAKKUMPATTUKARA, PINCODE - 62030, KANAYANNUR
TALUK, ERNAKULAM
BY ADVS.
VARSHA SAHAJAN
T.N.JAYADEVAN
ZAKEER HUSSAIN
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
23.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO. 340 OF 2019
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JUDGMENT
The original petition is filed to set aside the order in I.A.No.3123/2018 in O.S.No.125/2018 (Ext.P3) of the Court of the 2nd Additional Subordinate Judge, Ernakulam.
2. The petitioners were the defendants in the above suit, filed by the respondent, seeking a decree for realisation of money. The petitioners were set ex-parte. They had filed I.A.No.3123/2018 to set aside the ex-parte order. The Court below, by Ext.P2 order, set aside the order on condition that the petitioners file their written statement on or before 17.12.2018. Even though, the petitioners had filed the written statement on the said date there was a formal defect in the same. Therefore, the Court below by the impugned Ext.P3 order, dismissed I.A.No.3123/2018 and confirmed the ex-parte order. Ext.P3 is erroneous. Hence, the original petition.
3. Heard; Sri.Biju Varghese Abraham, the learned OP(C) NO. 340 OF 2019 3 counsel appearing for the petitioners and Sri.Zakeer Hussain, the learned counsel appearing for the respondent.
4. The Court below had by Ext.P2 order set aside the ex-parte order on condition that the petitioners file their written statement on or before 17.12.2018. It is undisputed that the petitioners had filed their written statement; but there was some formal defect in the same. The Court below even after noticing that the written statement was filed, rejected I.A.No.3123/2018 holding that no written statement was filed. Consequentially, Ext.P3 order was passed, confirming the ex-parte order.
5. On an appreciation of the pleadings and materials on record, I find that the course adopted by the Court below to be hyper technical and unwarranted especially when the petitioners had filed the written statement within the prescribed time period permitted OP(C) NO. 340 OF 2019 4 by the Court below. The Court below ought to have granted the petitioners an opportunity to cure defect in the written statement, instead of taking the drastic step of rejecting the application. It is trite, Courts should make every endevour to dispose of a case on merits rather than on default.
6. In the above background, I am inclined to exercise the supervisory powers of this Court under Article 227 of the Constitution of India and allow the original petition in the following manner:
(i) Ext.P3 order is set aside. (ii) The petitioners are permitted to cure the
defects in the written statement within two weeks from the date of receipt of a certified copy of this judgment, and represent the written statement before the Court below.
(iii) The Court below shall proceed with the trial of OP(C) NO. 340 OF 2019 5 the suit and dispose of the same, in accordance with law, as expeditiously as possible and at any rate on or before 31.03.2023.
sd/-
C.S.DIAS, JUDGE rkc/23.06.22 OP(C) NO. 340 OF 2019 6 APPENDIX OF OP(C) 340/2019 PETITIONERS' EXHIBITS EXHIBIT P1 A TRUE COPY OF THE PLAINT IN O.S.NO.125/2018 ON THE FILE OF HON'BLE IIND ADDITIONAL SUB COURT, ERNAKULAM EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 15.12.2018 IN I.A. NO.3123/2018 IN O.S.NO.125/2018 EXHIBIT P3 A TRUE COPY OF THE ORDER DATED 19.12.2018 IN I.A. NO.3123/2018 IN O.S.NO.125/2018