JOSEPH Vs. DEVASSIA

JUDGEMENT

(1.) This writ petition is preferred against the order in Interlocutory Application No. 2932/2007 in OS No. 366/2006 and IA No. 2933/2007 in OS No. 366/2006 of the learned Munsiff, Muvattupuzha, who had allowed the application for setting aside the ex parte decree on payment of cost of Rs.5,000/- to the respondents and Rs.1,000/- as batta to the Advocate Commissioner. At the outset, it was not proper on the part of the Court to have passed an order issuing a Commission for examination of the defendant even before setting aside the ex parte decree. When an ex parte decree is set aside, plaintiffs may have to be recalled and cross examined and thereafter only the question of defence evidence will arise. The Court has to apply its mind under O.18 of the Code of Civil Procedure (CPC) to find out whether evidence has to be recorded by itself or it is sufficient by issuance of a Commission. But, without adverting to any of these facts, the Court has, in an application to set aside the ex parte decree fixed the remuneration of the Commission, appointed a Commissioner and directed the defendant to pay a sum of Rs.1,000/-. This is not sustainable. So far as the setting aside of ex parte decree is concerned, it is true that there was a delay of 17 days in filing the application and the plaintiffs have to come from Mumbai most probably to give evidence. One cannot attribute negligence or grave misconduct on the petitioner and he had moved the Court almost in time and he has eagerness in prosecuting the matter. In such case, the Court is bound to exercise its judicial discretion of course by directing to pay the cost for the inconvenience caused to the other side. I feel the cost of Rs.5,000/- is on the higher side.