Case Law Details
Zerita Ashlen Rocha Vs Ann Mary Varghese (Kerala High Court)
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.
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 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.
HC permits petitioners to cure the defects in the written statement within two weeks and present the written statement before the court below.
FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT
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 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 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) 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 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.
