High Court Kerala High Court

Thirumangalath Madhavan … vs Kolorath K.Suresh on 25 July, 2008

Kerala High Court
Thirumangalath Madhavan … vs Kolorath K.Suresh on 25 July, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP.No. 199 of 2008()


1. THIRUMANGALATH MADHAVAN NAMBOODIRI,
                      ...  Petitioner

                        Vs



1. KOLORATH K.SURESH, S/O.KRISHNAN NAIR,
                       ...       Respondent

                For Petitioner  :SRI.T.SETHUMADHAVAN

                For Respondent  :SRI.K.JAYAKUMAR

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :25/07/2008

 O R D E R
                    M.SASIDHARAN NAMBIAR, J.

                       -------------------------------

                      C.R.P.Nos.199 & 207 of 2008

                       -------------------------------

                     Dated this the 25th July, 2008.

                                O R D E R

Petitioner in CRP.No.l99/2008 is the defendant in

O.S.No.18 of 2005 and plaintiff in O.S.No.36 of 2005 on the file of

Munsiff Court, Koyilandy. O.S.No.36/2005 was filed by the petitioner

for realisation of Rs.66,000/=. O.S.No.18/2005 is a suit instituted

by the respondent for realisation of Rs.85,000/=. Both the suits were

jointly tried. Petitioner remained absent on 5.2.2007 and the suits

adjourned to 9.2.2007. On that day, O.S.No.36/2005 was dismissed

for default and a decree as prayed for by the respondent was granted

in O.S.No.18/2005. Petitioner filed I.A.No.440 of 2005, an application

filed under Rule 13 of Order IX of Code of Civil Procedure, to set aside

ex parte decree in O.S.No.18/2005. He also filed I.A.No.441 of 2007 to

restore O.S.No.36/2005, under Rule 9 of Order IX of Code of Civil

Procedure. In both the petitions, petitioner contended that he was

hospitalised on 3.2.2007 and was discharged only on 8.2.2007, his

absence was not wilful and, therefore, ex parte decree is to be set

aside and the suit dismissed for default is to be restored.


CRP.Nos.199 & 207 of 2008


                                   2

                2.     Respondent opposed       both the applications

contending that there is no sufficient cause to set aside ex parte

decree or to restore the suit. It was contended that attempt of the

petitioner is only to protract the trial of the suits and he was not

hospitalised as claimed.

3. The learned Munsiff disposed the applications

separately by separate orders. No oral evidence was adduced, apart

from producing the medical certificate to prove sufficient cause for the

absence of the petitioner, when one suit was decreed ex parte and the

other suit was dismissed for default. Learned Munsiff dismissed both

the petitions.

4. Petitioner challenged dismissal of I.A.No.440 of 2005

before the Sub Court, Koyilandy, in C.M.A.No.12 of 2007 and

I.A.No.441 of 2007 in C.M.A.No.13 of 2007. Learned Sub Judge, as

per separate orders, confirmed the order of the learned Munsiff and

dismissed the appeals. C.R.P.No.199 of 2008 is filed challenging the

dismissal of I.A.No.440 of 2007 as confirmed in C.M.A.No.12 of 2007

and CRP.No.207 of 2008 is filed challenging the order in I.A.No.441

of 2007 as confirmed in C.M.A.No.13 of 2007.

CRP.Nos.199 & 207 of 2008

3

5. The learned counsel appearing for the petitioner and

the learned counsel appearing for the respondents were heard.

6. The learned counsel appearing for the petitioner

pointed out that though no oral evidence was adduced, petitioner has

produced medical certificate to establish that he was being treated as

an inpatient from 3.2.2007 till 8.2.2007, and the petitions were filed

within a period of 30 days from the date of dismissal of O.S.No.36 of

2005, and the ex parte decree passed in O.S.No.18 of 2005, and the

courts below should have taken a lenient view and granted

opportunity to the petitioner to have a decision on merits, and in such

circumstances, the orders are to be set aside. The learned counsel

submitted that petitioner is prepared to get ready in the suit and

learned Munsiff may be directed to dispose the suit within a time

frame.

7. The learned counsel appearing for respondent

argued that there is no bona fides in the petitions and the petitions

were rightly dismissed by the courts below. It was argued that suits

were originally disposed ex parte and subsequently opportunity was

granted to the petitioner, and even thereafter he was not willing to

CRP.Nos.199 & 207 of 2008

4

proceed with the suit, and that is the reason why suit filed by the

petitioner was dismissed and suit filed against respondent was

decreed. The learned counsel argued that when the petitions were

taken up by learned Munsiff, there was no request for adducing

evidence and no oral evidence was adduced, and in such

circumstances, courts below were justified in dismissing the

application. It was also submitted that petitioner was not serious in

prosecuting the petitions and even appeals were filed after inordinate

delay and the conduct of the petitioner shows that attempt is only to

protract the trial of the suits, and in such circumstances, as there is

no illegality or irregularity or jurisdictional error in the impugned

orders, the revision petitions are to be dismissed.

8. The fact that petitioner was earlier remained absent

and an ex parte decree was passed or suit was dismissed for default,

are not relevant facts, when the suits were subsequently restored

after setting aside the ex parte decree, by the court on satisfying

sufficient grounds for the absence. Hence, it is not a ground to

dismiss subsequent applications filed under Rule 13 of Order IX or

Rule 9 of Order IX of Code of Civil Procedure. The question to be

decided is when the petitioner remained absent on 5.2.2007 and the

CRP.Nos.199 & 207 of 2008

5

ex parte decree was passed on 9.2.2007, was there any sufficient

cause for his absence, and if so, whether ex parte decree is to be set

aside and suit is to be restored granting opportunity to the petitioner.

9. There is force in the submission of the learned

counsel appearing for the respondent that petitioner was not diligent

enough in prosecuting his suit or defending the suit instituted by the

respondent. That could only be the reason why the petitioner did not

adduce evidence in support of his contentions in the applications. In

the petition, the reason alleged for the absence was that he was being

treated as an inpatient in the hospital. Though the doctor who issued

the certificate was not examined, medical certificate was produced. It

shows that petitioner was being treated as an inpatient from 3.2.2007

to 8.2.2007. In such circumstances, it cannot be said that there is no

sufficient cause for the absence of the petitioner on 5.2.2007. Viewed

from that angle courts below should have taken a lenient view and

should have granted an opportunity to the petitioner to have a decision

on merits, but on terms. It is more so because the petitions to set

aside the decree and to restore the other suit were filed within the

period of limitation.

CRP.Nos.199 & 207 of 2008

6

10. In such circumstances, the revision petitions are

allowed on terms. I.A.No.440 of 2005 and I.A.No.441 of 2005 will

stand allowed on the petitioner paying or depositing a cost of

Rs.2000/= to the respondent within two weeks from today, failing

which dismissal of the petitions as confirmed in C.M.A.Nos. 12 and 13

of 2007 will stand and the revisions will stand dismissed. If the cost is

paid, ex parte decree in O.S.No.18 of 2005 will stand set aside and

O.S.No.36 of 2005 will stand restored. In that event, petitioner shall

get ready for the trial of the suit and shall not seek any adjournment.

If the ex parte decree in O.S.No.18 of 2005 is set aside and

O.S.No.36 of 2005 is restored, learned Munsiff to dispose both the

suits within four months from the date of restoration.

Post on 13.8.2008 for reporting compliance.

M.SASIDHARAN NAMBIAR,
JUDGE

nj.