The court allows an additional opportunity for the defendant to file a written statement despite previous ex parte orders.

ORDER

The revision petitioner is the defendant in O.S.

No.325/2016 on the file of the Munsiff Court, Kattappana. The suit was filed by the respondent for the balance amount due on the construction of a building. The petitioner entered appearance on 13.02.2017 and had also filed I.A.No.307/2017 for the appointment of an Advocate Commissioner, to report on the construction. On 13.04.2017 the petitioner was set exparte since no written statement had been filed. On 31.07.2017 an exparte decree was passed. The exparte decree was set aside by order in I.A.No.1589/2017 and the case was posted for filing of written statement on 05.10.2018. No written statement was filed even thereafter. The petitioner was again set exparte on 16.11.2018. An exparte decree was passed on 31.01.2019. The present petition is filed for setting aside the said exparte decree along with an application for condonation of delay of 201 days. The court below took note of the earlier proceedings in the case and held that there is no proper explanation for the failure to file the written statement in time. It is also noted in the order that no request was made for orders on the commission application and the application already stood dismissed when the first exparte decree was passed. The above order was confirmed in appeal in C.M.A No.7/2021. I do not find any legal infirmity in the order of the trial court and the first appellate court.

2. The counsel for the petitioner submitted that a mistake had occurred on the part of the counsel to point out the pendency of the application for commission and the counsel was under the impression that the written statement need be filed only after a commission report is filed.

3. The counsel for the respondent vehemently opposed the contentions and submitted that the attempt is to delay the proceedings.

Since the party cannot be found at fault, I am of the opinion that a further opportunity should be granted to the petitioner. The order in C.M.A No.7/2021 of the Sub court, Kattappana and the order in I.A.Nos.1274/2019 and 1275/2019 in O.S.No. 325/2016 on the file of Munsiff Court, Kattappana are set aside. I.A.Nos.1274/2019 and 1275/2019 in O.S.No. 325/2016 on the file of the Munsiff Court, Kattappana are allowed. The trial court shall afford a further opportunity to the petitioner to file a written statement. It is made clear that written statement shall be filed whether or not a commission report is available within the time that is fixed by the court. The trial shall proceed thereafter. The parties to appear before the court below on