IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 571 of 2008()
1. RAVUNNI @ CHANDRAN,
... Petitioner
Vs
1. SARALA BHASKARAN,
... Respondent
2. BINSU, D/O. DO. AND W/O.MULLANGATH
3. BASU, S/O.DO. RESIDING AT THYKAD
For Petitioner :SRI.K.JAYAKUMAR
For Respondent :SRI.G.SREEKUMAR (CHELUR)
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :03/12/2008
O R D E R
K.P.BALACHANDRAN, J.
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C. R. P. Nos.571 & 709 of 2008
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Dated this the 3rd day of December, 2008
ORDER
The revision petitioner and the
respondents in both these revisions are the
same. Revision petitioner is the plaintiff in
O.S.1025/04 on the file of the Sub Court,
Thrissur. The Respondents are respectively
defendants 1, 3 and 2 in the said suit. The
suit was decreed ex parte by the court below
as respondents 1 to 3 who entered appearance
in the court below through Advocate
Sri.C.B.Pradeep did not file any written
statement or contest the suit. The decree was
passed ex parte on 30/09/05. Respondents 1 and
2 filed I.A.2084/08 in the said suit under
Order IX Rule 13 to set aside the ex parte
decree and judgment and I.A.2083/08 seeking
condonation of delay of 844 days in filing
I.A.2084/08. Both the petitions were allowed
C. R. P. Nos.571 & 709 of 2008 -2-
by the court below vide orders challenged in
C.R.P.571/08. Pursuant to the ex parte decree
in the suit, the petitioner/plaintiff who was
the decree holder filed I.A.3996/06 to have
sale deed executed in compliance with the
decree passed in O.S.1025/04 for specific
performance of the contract to sell the
scheduled property. It is submitted that the
said I.A. was allowed by the court below and
sale deed was got executed through court by
the petitioner on 12/03/08. Respondents 1 and
2 filed I.A.2081/08 in I.A.3996/06 in the said
suit to set aside the ex parte order passed on
I.A.3996/06 and also filed I.A.2085/08 under
Section 5 of the Limitation Act to condone the
delay in filing I.A.2081/08. The orders on
I.As.2081 and 2085 of 2008 are assailed by the
petitioner/decree holder in C.R.P.709/08.
C. R. P. Nos.571 & 709 of 2008 -3-
2. Before proceeding to consider the case
of the petitioner in C.R.P.571/08, I am to
observe that the orders assailed in C.R.P.
709/08 are not speaking orders and the order
is only “I.A. allowed”. Probably it could be
because the Sub Judge who has allowed the
petitions under Order IX Rule 13 and the delay
condonation application filed therewith vide
I.A.2083 and 2084 of 2008 would have thought
that in view of the said order no speaking
order is required to be made on I.A.2081 and
2085 of 2008. Such a view also cannot be
faulted for the reason that when the ex parte
decree is set aside, obviously the subsequent
order passed on I.A.3996/06 to have the decree
complied with also will have to be set aside.
Consequently, it follows that the decision in
C.R.P.709/08 shall depend upon the order that
is to be passed in C.R.P.571/08.
C. R. P. Nos.571 & 709 of 2008 -4-
3. The orders assailed in C.R.P.571/08
were passed by the court below considering the
evidence adduced which consisted of only
documentary evidence Exts.B1 to B7 in I.A.
2084/08 and Exts.B1 to B3 in I.A.2083/08.
Exts.B1 to B3 marked in I.A.2083/08 are the
same as Exts.B1 to B3 marked in I.A.2084/08.
The counsel for the petitioner has produced
before me for perusal true photostat copies of
Exts.B1 and B3. Ext.B3 shows that the summons
issued to the defendants in O.S.1025/04 was
being served in the address given in the
plaint directly to the second defendant who is
the third respondent herein who accepted also
the summons on behalf of defendants 1 and 3
who are respondents 1 and 2 herein stating
that they had then gone out and the Process
Server was serving summons of defendants 1 and
3 on the second defendant being convinced that
C. R. P. Nos.571 & 709 of 2008 -5-
defendants 1 and 3 are residing in the same
house and that D2 is residing with them in
that house. The service of summons is in order
and its correctness cannot be challenged.
Pursuant thereto all defendants 1 to 3 have
entered appearance in the suit on 22/03/08
filing Ext.B1 vakalath through Advocate
Sri.C.B.Pradeep, a lawyer of Thrissur bar. The
counsel for the respondents does not assail
the fact of defendants having entered
appearance in the suit filing vakalath of
Advocate Sri.C.B.Pradeep. Consequently,
therefore, the case is one where summons has
been duly served and the respondents were
having knowledge of the suit and they entered
appearance, but did not care to file any
written statement and the suit happened to be
decreed ex parte.
C. R. P. Nos.571 & 709 of 2008 -6-
4. The question therefore, is whether
there is any sufficient cause to enable the
decree passed ex parte on 30/09/05 being set
aside on an application made vide I.A.2084/05
on 04/03/08 condoning the delay of as much as
844 days sought for to be got condoned filing
I.A.2083/08.
5. It is worthy to note in this context
that the petitioners have not entered the
witness box and have not tendered any evidence
to substantiate any ground to set aside the ex
parte decree. To substantiate the case of the
petitioner/plaintiff that the suit agreement
on the basis of which a decree was granted to
him is genuine, he produced Ext.B4 prior title
deed of the suit property which was handed
over to him while executing the suit agreement
for sale of the scheduled property. He also
produced Ext.B5 sale deed executed in his
C. R. P. Nos.571 & 709 of 2008 -7-
favour through court pursuant to the decree
for specific performance in O.S.1025/04
aforesaid. From the order, I see that the
court has allowed the application to set aside
the ex parte decree observing that according
to the petitioners (defendants 1 & 3) they
have never accepted the summons from the court
and their address shown in the plaint is
incorrect and the respondent (plaintiff) also
has no case that the summons were properly
served to the petitioners in person and
consequently, petitioners have sufficient
cause for their absence. The said approach
made by the court is perverse and deserves to
be reversed for the reason that the service as
evidenced from Ext.B3 report of the Process
Server is sufficient service and further that
cannot be assailed in view of all defendants 1
to 3 entering appearance in the suit engaging
C. R. P. Nos.571 & 709 of 2008 -8-
lawyer who has filed Ext.B1 vakalath on
23/02/05. The delay of as much as 844 days
also is condoned casually by the Sub Judge
recording the submissions of the counsel that
the defendants 1 to 3 who filed petition under
Order IX Rule 13 have no knowledge regarding
the summons and that the words “sufficient
cause” should receive a liberal construction
so as to advance substantial justice when no
negligence or inaction or want of bona fides
is imputable to a party. Though the Sub Judge
has extracted the broad principles which are
to be followed, he has not considered the
question as to whether there was negligence or
inaction or want of bona fides on the part of
respondents 1 and 2 in the matter of conduct
of their defence in the suit after entering
appearance through a lawyer. They did not file
any written statement nor did they do anything
C. R. P. Nos.571 & 709 of 2008 -9-
for the progress of the suit. They did not
make any enquiry to their lawyer regarding
their case. They gave scant regard to the
matter and did not enquire as to whether a
decree is passed at all. The nature of the
petitioners in those I.As who are defendants 1
and 3 show that they were callous in the
matter of conduct of defence in the case and
the court below has not seen any justifiable
reason to be accepted as sufficient cause to
condone the delay of 844 days in filing
petition under Order IX Rule 13 so as to upset
the decree that has been passed in favour of
the petitioner/plaintiff as early as on
30/09/05 pursuant to which Ext.B5 sale deed
also was executed in their favour by the
court. It is strange that the learned Sub
Judge has set aside the decree in a casual
manner condoning the delay of 844 days without
C. R. P. Nos.571 & 709 of 2008 -10-
even having the petitioners in the said I.A
who are respondents 1 and 2 tendering any
evidence also in support of their case
advanced in I.A. Nos.2083 and 2084 of 2008
that they were not aware of the decree in the
suit and they had not been served with summons
when the fact remains that all the defendants
in the suit entered appearance through
Advocate Sri.C.B.Pradeep who filed Ext.B1
vakalath in the suit on 23/02/08. The orders
on the above two I.As.2083 and 2084 of 2008
assailed in C.R.P.571/08 deserve therefore, to
be set aside in the circumstances allowing
C.R.P.571/08 and consequently, the orders on
I.A. Nos.2081 and 2085 of 2008 which are
nonspeaking orders assailed in C.R.P.709/08
also deserve to be set aside allowing
C.R.P.709/08.
C. R. P. Nos.571 & 709 of 2008 -11-
6. In the result, I set aside the orders
impugned in both these revisions and dismiss
I.As.2083 and 2084 of 2008 as also I.As.2081
and 2085 of 2008 filed by respondents 1 and 2
in O.S.1025/04 of Sub Court, Thrissur. C.R.P
Nos.571/08 and 709/08 are thus, allowed.
K.P.BALACHANDRAN,
JUDGE
kns/-