High Court Kerala High Court

Siby Joseph vs P.I.George on 4 November, 2010

Kerala High Court
Siby Joseph vs P.I.George on 4 November, 2010
       

  

  

 
 
  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.

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

                    W.P(C).No.22383 of 2010

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

             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

W.P(C).No. 22383 of 2010
: 2 :

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

W.P(C).No. 22383 of 2010
: 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/-