IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 22383 of 2010(O)
1. SIBY JOSEPH, AGED 46, S/O.JOSEPH,
... Petitioner
Vs
1. P.I.GEORGE, S/O.ITTY,
... Respondent
For Petitioner :SRI.K.B.PRADEEP
For Respondent :SRI.N.ASHOK KUMAR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :04/11/2010
O R D E R
THOMAS P JOSEPH, J.
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W.P(C).No.22383 of 2010
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Dated this 04th day of November, 2010
JUDGMENT
Defendant in O.S.No.42 of 2009 of the court of learned Sub
Judge, Chengannur is the petitioner before me. Respondent filed
that suit for recovery of money based on a few cheques. The case
was posted for trial in the list on 10-08-2009. That day, petitioner
says, as he was laid up due to Jaundice he could not appear and
his counsel made Ext.P3, application to remove the case from list
as per instruction given by him. The case was posted on 12-08-
2009. Case was decided against petitioner ex parte on 13-08-
2009 but on 10-09-2009 petitioner filed Ext.P5, I.A.No.599 of
2009 to set aside the ex parte judgment and decree. On that
application notice was issued to the respondent and posted for
return of notice on 03-10-2009. On that day, Ext.P5, application
was dismissed for default. Petitioner filed Ext.P6, I.A.No.804 of
2009 for review and restoration of Ext.P5, application and Ext.P7,
application to condone the delay in filing Ext.P6, application.
Respondent opposed Exts.P6 and P7 vide Ext.P8, objection.
Learned Sub Judge vide Ext.P9, order dated January 30, 2010 has
dismissed Exts.P6 and P7 stating that absence of petitioner in
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court on 03-10-2009 was wilful or deliberate. That order is under
challenge in this court under Article 227 of the Constitution.
Learned counsel contended that the observation made by learned
Sub Judge that absence of petitioner in court on 03-10-2009 was
willful and deliberate is not correct. Learned counsel requested
that petitioner may be given an opportunity to prosecute Ext.P5,
application to set aside the ex parte judgment and decree.
Learned counsel for respondent opposed the prayer and
supported Ext.P9, order.
2. I have gone through Ext.P9, order. It is not revealed in
what way learned Sub Judge came to the conclusion that
petitioner willfully or deliberately absented himself from court on
03-10-2009 on which day Ext.P5, application was posted for
appearance of respondent/plaintiff. It is not clear whether
respondent/plaintiff had appeared on Ext.P5, application on
03-10-2009. It is not clear what exactly was the ‘default’ on the
part of petitioner on 03-10-2009. By ‘default’ I mean to
understand failure on the part of the party concerned to do and
act which is enjoined by the statute or as directed by the court. In
the present case on 03-10-2009 Ext.P5, application was posted
for appearance of respondent. There was nothing which
petitioner was required to do on that day, even if it is assumed
that petitioner was absent in court on that day. Hence, I am
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: 3 :
unable to accept that view of learned Sub Judge either that there
was ‘default’ on the part of petitioner on 03-10-2009 or that his
absence in court on that day was deliberate or willful. Having
regard to the circumstances stated before me I am persuaded to
think that petitioner must be given an opportunity to prosecute
Ext.P5, application.
Resultantly this petition is allowed and Ext.P9, order is set
aside. Exts.P6 and P7, applications will stand allowed.
Respondent takes notice on Ext.P5, application (to set aside the
ex parte judgment and decree). Learned Sub Judge shall dispose
of Ext.P5, application after hearing both sides as provided under
law. Parties shall appear on Ext.P5, application in the court of
learned Sub Judge, Chengannur on 30-11-2010.
(THOMAS P JOSEPH, JUDGE)
Sbna/-