Sajithkumar vs S.Sajitha

Mohammed Nias.C.P..J

This original petition is filed challenging Ext.P7 order that allowed the application filed by the respondent herein seeking to set aside the ex-parte order along with an application to condone the delay of 150 days in filing the same. The court below, by the impugned order allowed the applications on condition of payment of cost of Rs.2000/- to the petitioner herein. Challenging the said order, the learned counsel for the petitioner submits that the basis for applying for setting aside the ex-parte decree was that the respondent did not receive notice, but the said contention was not accepted by the lower court and despite the same the application was allowed on cost. Learned counsel further submits that if the reason put forth in the application to set aside the ex-parte order was found to be wrong then the application ought not have been allowed.

Learned counsel for the respondent however maintains before us that his client did not receive the notice of the proceedings from the family court. Be that as it may, we note that the court below had exercised a discretion in allowing the application to set aside the ex-parte order on terms possibly though it did not fully agree with the averments in the affidavit filed in support of the application to set aside the ex-parte order so as to enable the parties to contest on merits. We also feel that the matter has to be decided on merits and the attempt of the court below was for ensuring a contest on merits. We do not find such exercise of discretion by the court below to be wrong, to be interfered with in this original petition, much less under Article 227 of the Constitution of India. We do not find any merit in the original petition and the same is accordingly dismissed,.