PARAMESWARAN NAIR Vs. PARVAJA

JUDGEMENT

(1.) O.S.No.515 of 2008, filed by the petitioner for specific performance of a contract, was decreed exparte by the Sub Court, Palakkad on 18.3.2010 as the counsel for the defendant reported no instructions and as the defendant was absent. The defendant filed I.A.No.1408 of 2010 to set aside the exparte decree. The court below allowed the application on condition that the defendant shall pay a sum of `3,000/- as costs on or before 7.8.2010. According to the petitioner, the defendant did not pay the costs within time. On 10.8.2010, the defendant filed I.A.No.2621 of 2010 for enlargement of time to deposit the costs before Court. In the affidavit accompanying the application, the defendant stated that though the amount of costs was offered to the counsel for the plaintiff within time, it was refused to be accepted by the counsel and therefore, the defendant was constrained to file the application for extension of time. The court below allowed the application by the order dated 4.9.2010, granting time to the defendant to pay the costs on or before 10.9.2010. That order is under challenge in this Original Petition.

(2.) LEARNED counsel for the petitioner submitted that the court below found in the order impugned that the reason stated by the defendant for her failure to pay the costs within time is not genuine. The counsel submits that the court below having found so, it was not proper to extend the time to pay the costs and the court below was not justified in exercising the discretion in favour of a party who stated an incorrect fact. It is also pointed out that the learned counsel appearing for the plaintiff in the lower court is a very senior counsel and if parties are allowed to put forward unfounded allegations as are made by the defendant in the present case, it would affect the reputation of the counsel as well. The counsel relied on the judgment of the Supreme Court in Pundlik J.Patil v. Executive Engineer (2009 (1) KLT SN 25 (C.No.26)SC). In Pundlik.J.Patil's case, the Supreme Court held that when an incorrect statement is made in the application seeking condonation of delay, that itself is a sufficient ground for rejecting the application without any further enquiry. In that case, the party concerned alleged that he had no knowledge of the award passed by the reference court in the Land Acquisition Reference. It was found to be false by the Court. In such circumstances, the Supreme Court held that the application for condonation of delay could be dismissed on the finding that false averments were made in the affidavit.