IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 266 of 2010()
1. M/S.ST.JUDE'S ENTERPRISE
... Petitioner
Vs
1. T.A.ANTONY
... Respondent
For Petitioner :SRI.MATHEW JOHN (K)
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :27/05/2010
O R D E R
THOMAS P.JOSEPH, J.
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C.R.P. No.266 of 2010
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Dated this the 27th day of May, 2010
O R D E R
This revision is in challenge of the common order passed by
learned Principal Sub Judge, Kottayam on I.A. Nos.5039 and 5041
of 2008 whereby ex parte decree passed in favour of petitioner
was set aside after condoning the delay of 1073 days. Learned
counsel for petitioner contends that the order is erroneous and
overlooking the factual situation which emerged in the case.
According to the learned counsel there was due service of
summons on respondents as provided under Order V Rule 15 of
the Code of Civil Procedure (for short, “the Code”) in that, notice
was served on mother of respondent No.1. It is also the
contention of learned counsel that the very fact that in the
application to condone delay, delay right from the date of ex parte
order of decree is sought to be explained indicate that
respondents were aware of the ex parte decree then itself.
2. Petitioner sued respondents for recovery of
Rs.6,21,338/- allegedly due from the respondents as per a Chitty in
which respondent No.1 had subscribed to 20 tickets. Respondents
filed application to set aside the ex parte decree and to condone
C.R.P. No.266 of 2010
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the delay of 1073 days stating that respondent No.1 was in the
United Kingdom during the relevant time, summons was not
served on him and that he had no information about the case or
ex parte decree. Respondent No.2 is a cine actor and claimed
that he is permanently residing in Bangalore and had not received
summons in the case. It was only on 12.10.2008 when P.W.1,
Power of Attorney of respondents noticed affixture of notice in the
E.P., in the property of respondents that he learnt about the ex
parte decree which was conveyed to the respondents. Thereon
they filed the applications. Power of Attorney holder gave
evidence as P.W.1 and stated to the case of respondents. Exhibit
A1 is the Power of Attorney. That document was executed in
United Kingdom. Learned Sub Judge observed from Ext.A1 that
the said document indicated that during the time summons was
attempted to be served on respondent No.1 he was in the United
Kingdom.
3. It is true that going by the records as submitted by
learned counsel summons on respondent No.1 was served through
his mother and it has satisfied requirements of Order V Rule 15 of
the Code. But fact remained that during the relevant time
respondent No.1 was in United Kingdom. Evidence is that
respondent No.2 was permanently residing at Bangalore. No
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contra evidence is given by the petitioner. Learned Sub Judge
noticed that suit notice issued by the petitioner to the
respondents was returned undelivered which also indicated that
respondents were not available in the address stated in the notice
(and in the plaint). These circumstances were taken into account
by the learned Sub Judge to hold that on the facts and
circumstances of the case sufficient cause is made out and that
discretion has to be exercised in favour of respondents. The fact
that Rs.6,21,338/- is claimed from the respondents was also
taken note of by the learned Sub Judge.
4. According to the learned counsel respondents had
even tried to negotiate with the petitioner before institution of the
suit which also indicate that they were very much aware of
institution of the suit.
5. Court below found that respondents have made out
sufficient cause and exercised discretion in favour of respondents
in the matter of condoning delay and setting aside the ex parte
decree. Question is whether this Court should interfere with that
finding and the discretion exercised by learned Sub Judge. This
Court in revision is not sitting in appeal over the decision of the
court below. It is only when there is patent illegality or perversity
committed by the court below which required correction that
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revisional court should interfere. Revisional jurisdiction is
supervisory in character to rectify patent mistakes or illegality
committed by the court below. In this case I do not find any such
patent illegality or perversity in the order of the court below
holding that sufficient cause is made out and exercising
discretion in favour of respondents giving them an opportunity to
contest the plaint claim of Rs.6,21,338/- with future interest and
costs. In Sreedhara Kurup v. Mickel (1968 KLT 599) this
Court has laid down the principles which the subordinate courts
have to bear in mind while considering such applications. Parties
should be given an opportunity to contest the case on merit
unless they are guilty of any contumacious conduct. Having
regard to the circumstances of the case and the principles laid
down in the above decision I do not find reason to interfere with
the impugned order. But I direct the learned Principal Sub Judge
to expedite the trial and disposal of the case.
Civil Revision Petition is dismissed with the above direction.
THOMAS P. JOSEPH, JUDGE.
vsv