K KUMARI Vs. CHERIAN SAMUEL

JUDGEMENT

(1.) Under challenge in this writ petition under Article 227 are Exts.P7 and P8 orders passed by the Subordinate Judge, Mavelikara. By Ext.P7 order, the learned Subordinate Judge dismissed I.A. No.1545 of 2007, which was an application to set aside the dismissal of I.A. No. 736 of 2006 which in turn was an application to set aside the ex parte decree. By Ext.P8 order, the learned Subordinate Judge dismissed I.A. No. 1544 of 2007 which was an application seeking condonation of the delay of 162 days caused in the matter of filing IA. No. 1545 of 2007. The learned Subordinate Judge was not impressed by the averments made by the petitioner in the respective affidavits in support of the two applications. Even though Sri.A.R.Dileep, learned counsel for the petitioner addressed very strenuous arguments before me and took me to the various exhibits which include copies of the affidavits, I am not persuaded to hold that the learned Sub Judge should have been impressed by the grounds urged by the petitioner for condonation of delay and also for restoration. At the same time, I keep in mind the principle that as far as possible, causes should be allowed to be adjudicated on merits rather than decided on technicalities. In the instant case there had been delay due to negligence on the part of the petitioner. The contentions raised by him in the suit which was for a fairly big amount have not been adjudicated by the learned Subordinate Judge. A learned Judge of this Court after hearing both sides for some time appears to have thought that some relief can be given to the petitioner on condition that the petitioner furnishes security for the plaint claim. In fact, by order dated 12-10-2009 this court granted time to the petitioner's counsel for contacting the petitioner regarding his willingness to furnish security. Today when the attention of Mr.Dileep was drawn to the above order, he submitted that the immovable properties of the petitioner are under attachment before judgment in the suit. According to the learned counsel, those properties are very valuable properties and the attachment in the present suit is the only liability which is fastened on the properties. I feel that on considerations of justice, relief can be given to the petitioner imposing suitable conditions including conditions for furnishing security. Accordingly the writ petition is disposed of in the following terms. Exts.P7 and P8 will stand set aside. I am not finally deciding I.A. No.736/06. The said will stand restored to file and IA. 1545/07 will stand allowed subject to the following conditions:

(2.) The petitioner will pay a sum of Rs.6000/- to the respondent either directly or through respondent's counsel in this court within three weeks from today.

(3.) The petitioner will pay an amount of Rs.1500/- to the Kerala High Court Legal Services Committee within the same time limit.