JOM C MICHAEL Vs. V P KONTHALAM

JUDGEMENT

(1.) DEFENDANT in O.S.No.211 of 2005 suffered an ex parte decree, attempted to set aside that ex parte decree and resurrect the case after 1048 days of the judgment and decree failed successively. Thus, he is before me seeking the indulgence of this court in the matter.

(2.) RESPONDENT sued petitioner for a declaration of his right for lateral support for plaint A schedule property belonging to him from plaint B schedule belonging to the petitioner. It is not disputed that in the plaint A schedule respondent has constructed a shop building. Petitioner started excavation of earth from plaint B schedule adjoining plaint A schedule and at a time when the excavation reached up to a distance of 13 inches from the outer wall of shop room in plaint A schedule respondent was constrained to file a suit seeking relief as aforesaid. Advocate Commissioner inspected the property and submitted a report. The Court passed an ex parte judgment and decree on 31-01-2006. On 14-01-2009 petitioner filed I.A.Nos.56 and 57 of 2009 to set aside the ex parte judgment and decree and to condone the delay stating that he learned about the ex parte judgment and decree only on 19-12-2008 from O.S.No.343 of 2008 filed by a nephew of the respondent seeking similar relief. He stated that he was out of station in connection with business and hence could not learn about the judgment and decree against him. RESPONDENT opposed the applications. Learned Munsiff rejected the explanation offered by petitioner and dismissed the applications vide Ext.P6, common order. That has been confirmed by the learned District Judge vide Ext.P7, judgment in C.M.A.No.24 of 2009. The said common order and judgment are under challenge. Learned counsel contends that it is not merely the length of the delay that is relevant for decision but the ends of justice must be born in mind while considering the applications to set aside the ex parte judgment and decree and to condone the delay. Reliance is placed on the decision in Thomas P Abraham Vs Aleyamma Abraham (2003(3) KLT 864) and Khetrabasi Srechandan Vs. Gopinath Srechandan (AIR 2009 NOC (Orissa) 926).

(3.) THE decisions relied by learned counsel for petitioner have no application to the facts of the case. Thomas P Abraham Vs Aleyamma Abraham (supra) was a suit for specific performance where the ex parte decree for specific performance was granted and this court considered the question whether even in the absence of defendant the court should have granted discretionary relief of specific performance. Learned counsel submits that the decree itself is not correct having regard to the factual situation. That of course is a matter which petitioner should challenge in an appeal if presented as provided under law against the judgment and decree. I am not persuaded to think on the facts and circumstances of the case that courts below have committed any illegality, irregularity or perversity in dismissing the applications and the appeal arising from the common order or that, this court is required to interfere with Article 227 of the Constitution. This petition fails. It is dismissed.