DEEPU ZACHARIAH Vs. XAVIER

JUDGEMENT

(1.) THE writ petitioners are the defendants in O. S. No. 229/1997 of Principal Sub Court, Kottayam. The respondent/plaintiff filed the suit, for specific performance of a contract for sale of a property, to an amount of Rs. 30 lakhs. Of the sale amount, a payment of Rs. 24 lakhs, was allegedly paid as the part of the sale consideration. On the failure of the writ petitioners, to execute the sale deed, the respondent had approached the court and filed the suit in the year 1997. During the pendency of the suit, and after the filing of the written statement, the suit was amended, with an alternative prayer, for the return of the money, in the even of the specific performance not allowable. The suit could not be disposed of till 16. 9. 2004. On that date, when the matter was taken up, the respondent's counsel, before the court below, submitted no instructions. Accordingly, the suit was adjourned to 29. 9. 2004. there was no representation on that date. Hence, the court below passed an ex parte decree against the writ petitioners for realizing Rs. 24 lakhs with interest and cost of Rs. 1,86,765/=.

(2.) THE writ petitioners filed I. A. No. 2964/2004 on 28. 10. 2004, within 30 days, under Order IX Rule 13 C. P. C, to set aside the ex parte decree passed against them. Considering the strong objection filed by the respondent/plaintiff, the court below, though commended upon Ext. A1 medical certificate produced by the him, yet set aside the ex parte order and the decree there on, with a condition that, if an amount of Rs. 1,86,765/- was deposited within two weeks, the ex parte decree will stand set aside. The said order is under challenge through this writ petition.

(3.) I heard the arguments of learned counsel Sri. Liji J. Vadakkedom and Sri. Rajeev V. Kurup. The lower court considered V. K. Industries v. M. P. Electricity Board, Rampur, Jabalpur (AIR 2002 SC 1151) in imposing the cost of Rs. 1,86,765/ -. The very same authority had been relied on before me too, to emphasis the fact that the cost imposed should be reasonable and not to be harshly excessive. The counsel went on to submit that the property of the writ petitioners had already been attached. Thus the decree, that would be passed, is already well secured. Because of the impecunious conditions of the writ petitioners, the excessive cost imposed may be avoided, and the writ petitioners may be allowed to contest the suit, so that the same could be decided on merits.