IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 516 of 2010()
1. S.VASUDEVAN,
... Petitioner
Vs
1. C.K.JANAKI, W/O. M.A.THANKAPPAN,
... Respondent
2. JAINAMMA, D/O. THANKAPPAN,
3. KANAKAMMA, D/O. THANKAPPAN,
4. JAGADAMMA, D/O. THANKAPPAN,
5. SREEDEVI, D/O. THANKAPPAN,
6. VINODINI, D/O. THANKAPPAN,
7. BINDU, D/O. THANKAPPAN,
For Petitioner :SRI.V.ANIL (K/1480/98)
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :01/10/2010
O R D E R
THOMAS P JOSEPH, J.
----------------------------------------
C.R.P.No.516 of 2010
---------------------------------------
Dated this 01st day of October, 2010
ORDER
This revision is in challenge of judgment of learned
Additional District Judge, Kottayam in C.M.A.No.8 of 2010
confirming dismissal of I.A.No.1632 of 2009 in O.S.No.311 of
2006 of the learned Principal Munsiff, Kottayam. That is a suit
filed by the respondent for recovery of money based on chitty
agreement. The suit was decided ex parte. Later, petitioner filed
applications to set aside the ex parte decree and to condone the
delay in filing the applications. Those applications were
dismissed for default. To restore those applications petitioner
filed I.A.No.2994 of 2007 which again was dismissed for default
on 15-03-2008. Thereafter petitioner filed an application for
review of order dated 15-03-2008 and I.A.No.1632 of 2009 to
condone the delay of 441 days in filing the applications for
review. I.A.No.1632 of 2009 was dismissed and consequently
application for review (I.A.No.1631 of 2009) was also dismissed.
Dismissal of I.A.Nos.1631 and 1632 of 2009 were challenged in
C.M.A.No.8 of 2010. That appeal was dismissed. Hence this
revision. It is contended by learned counsel that petitioner was in
C.R.P.No.516 of 2010
: 2 :
fact set ex parte and that before the decree the suit was
dismissed for default but no notice of application for restoration
was served on petitioner. Learned counsel says the decree is
being executed and the property is about to be sold. Hence this
revision challenging judgment and order of the court below.
2. It is contended by learned counsel that petitioner was
not set ex parte and in support of that learned counsel has
produced a copy of the B diary. Learned Principal Munsiff has
observed in the impugned order that on perusal of the back
records it is revealed that petitioner was set ex parte. It is
thereafter that suit is said to be dismissed for default and
allegedly without notice to the petitioner, it was restored. I am
not at the question whether the court was justified in passing a
decree against petitioner on the grounds pleaded by petitioner in
this proceeding. Petitioner can challenge the decree itself by way
of appeal if he is otherwise entitled to that course. Now the
question is whether order on I.A.Nos.1631 and 1632 of 2009
requires interference.
3. It is not disputed that petitioner filed application to
set aside the ex parte decree and to condone the delay. Three
applications – I.A.Nos.2029, 2030 and 2031 of 2007 were filed in
C.R.P.No.516 of 2010
: 3 :
that regard. It is pertinent to remember that in the meantime
respondent filed execution petition in the year 2007 and
indisputably notice of execution petition was served on petitioner.
I.A.Nos.2029 to 2031 of 2007 were dismissed for default. It is
thereafter that petitioner filed I.A.No.2994 of 2007 for
restoration of the applications dismissed for default. I.A.No.2994
of 2007 also met with the same result – a dismissal for absence of
petitioner. That dismissal was on 15-03-2008, certainly at a time
when execution petition was pending with notice to the
petitioner. Still it took 441 days for him to approach the learned
Munsiff with I.A.No.1631 of 2009 for review of dismissal of
I.A.No.2994 of 2007 for default. Explanation given by the
petitioner for delay is that his counsel and the clerk did not
prosecute the matter properly. There is no point in blaming the
counsel and/or clerk in that regard. Atleast in 2007 petitioner
was aware of the execution petition and I.A.No.2994 of 2007 was
dismissed on 15-03-2008. It is after 441 days that he came with
present application. It is difficult to think that in spite of the
execution petition with request for sale of property being
pending, he did not make any enquiry about the applications for
setting aside the ex parte decree. Contumacious negligence is
C.R.P.No.516 of 2010
: 4 :
writ large on the petitioner. Learned counsel has placed reliance
on the decision in Secretary, Department of Horticulture,
Chandigarh and Anr. Vs. Raghu Raj (2009(1) KHC 310
(SC)) where the Supreme Court has held that failure of
appearance of Advocate is not only unfair to the client but also
unfair and discourteous to the court and a client should not suffer
for that. Every case has to be decided on the facts of the case. A
decision is an authority for the facts decided therein. This court
had occasion to consider the lethargy on the part of litigants in
conducting trial in the trial court. In Abdul Khader Vs.
Surburban Chit Funds (P) Ltd (2006(1) KLT 749) this court
stated that an incorrect impression has gained ground that any
and every error, inadequacy and contumacious lethargy in the
conduct of cases can be corrected at later stages by approaching
the superior courts. Having heard learned counsel and gone
through the records I am persuaded to think that petitioner
should not have such a impression. I do not find reason to
interfere.
Writ petition is dismissed.
(THOMAS P JOSEPH, JUDGE)
Sbna/-