IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 1145 of 2005()
1. STATE OF KERALA, REP. BY THE CHIEF
... Petitioner
2. THE SUPERINTENDING ENGINEER,
3. THE EXECUTIVE ENGINEER,
Vs
1. RON SECURITIES AND SERVICES, A FIRM
... Respondent
2. A.XAVIERKUTTY, S/O.CHACKO, AGED ABOUT
3. P.S.AJAYAKUMAR, S/O.SUKUMARAN,
For Petitioner :GOVERNMENT PLEADER
For Respondent :SRI.RAJU K.MATHEWS
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :21/08/2007
O R D E R
M.N. KRISHNAN , J
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C.R.P NO. 1145 OF 2005
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Dated this the 21st day of August, 2007.
JUDGMENT
This revision petition is preferred against the order of the District
Judge, Thodupuzha in C.M.A. No. 1300/2002 whereby he confirmed
the order of the Subordinate Judge, Kattappana in I.A. Nos.
1096/2001 and 1097/2001 in O.S. No.57/1999. The suit was filed for
realisation of the money due from the defendants. The court passed
an ex parte decree on 09.03.2001 whereby it allowed recovery of
Rs.50,000/- from the 5th defendant, refused relief against the other
defendants but directed the defendants 1 to 3 to release forthwith an
amount of Rs.8 lakhs kept in the suspense account unless it is
subjected to any court orders or attachment. With a delay of 215 days
as noted by the government and 232 days as noted by the District
Judge an application to set aside the ex parte decree filed by the 3rd
defendant namely the executive engineer in the suit. The ground
alleged are that the statement of facts were prepared and entrusted to
the Additional Government Pleader Sri. Thomas Perumana and
because of his over sight, the written statement could not be filed
within time. He had resigned and the successor advocate did not take
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serious note of the matter and failed to file the written statement.
Defendants 1 to 3 were set ex parte on 30.01.2001. PW1 was
examined and he had deposed in tune with the pleadings but the court
below did not accept his evidence and held that the delay has not been
properly explained. The appellate court also confirmed the view of the
court below. The learned counsel for the respondents in the revision
petition could contend for the position that there is no decree against
the government and therefore there cannot be any grievance for them.
It is also contended that the release of the amount lying in suspense
account had been protected by the decree itself and therefore it is also
not a ground and lastly the materials available and the evidence
adduced are not satisfactory to condone the delay. The question of
condoning the delay and setting aside the ex parte decree had been
the subject matter of so many decisions of this Court as well as the
apex court. It is true that delay shall not be condoned as a routine
matter and ex parte decree cannot be set aside for a mere asking.
The apex court had laid down the principles regarding the condonation
of delay in the decision reported in (Collector, Land Acquisition,
Anantnag v. Katiji) AIR 1987 Supreme Court 1353 that ordinarily a
litigant does not stand to benefit by lodging an appeal late. It is also
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stated that when substantial justice and technical considerations are
pitted against each other, cause of substantial justice deserves to be
preferred for the other side cannot claim to have vested right in
injustice being done because of non-deliberate delay. It must be
grasped that judiciary is respected not on account of its power to
leagalise injustice on technical grounds but because it is capable of
removing injustice and is expected to do so. When this approach is
necessary in the case of a private litigant the court should not adopt a
step motherly attitude to the State Government. The apex court also
took note of the difficulties that may have to be faced by the state
because of non-individual personal responsibility of a person dealing
with the governmental matters. Here, the reason averred is that
instructions were given to former Government Pleader but did not file
the written statement and the subsequent Government Pleader did not
take serious note of it. It is contended that more than 31 lakhs is due
from the contractor and P.W.D has got lien over the amount which is
lying in the suspense account. So though it is in the form of directions
the observations make it clear that it substantially affects the right of
the government. The courts below had highly technical and they have
not adopted broader principles of natural justice in this case. I will
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also refer to the decision of this Court in Plantation Corporation of
Kerala Ltd. v. Hussain (1998 (1) KLT 1008) where this Court quoted
exhaustively from the decision of a single judge reported in
Sreedhara Kurup v. Mickel (1968 KLT 599) this Court held that the
touch stone in a case under Order IX Rule 9 C.P.C is the presence of
sufficient cause for non appearance. The broad principle of natural
justice that informs our judicial institution is that a litigant should not
be deprived of hearing unless there has been something equivalent to
misconduct or gross negligence on his part. Then proceeded on to
held that if some steps have been taken and application for restoration
has been made with some deligence and some evidence adduced
making out a sufficient cause for absence, restoration should be
ordered, minor misconduct or laches being corrected by the common
curative of costs. From the above enunciated principles referred to
above it would show that when it is proved that a party is not grossly
negligent or guilty of grave misconduct then the court should give a
chance for fair hearing to the parties concerned. The 3rd defendant,
executive engineer has sworn to affidavit. He has mounted the box
and there may be discrepancies here and there but the object of his
evidence is to preserve the governmental interest and therefore I
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consider it as a fit case where the courts below should have condoned
the delay and set aside the ex parte decree so far as it related to
defendants 1 to 3 are concerned. Since the other defendants had not
come forward, the question of setting aside the ex parte decree
against them does not arise and lastly it is not inseparable decree
whereby the decree becomes unexexecutable decree against all
defendants. Therefore, the C.R.P is allowed and the ex parte decree
against defendants 1 to 3 are set aside and the court below is directed
to restore the case with respect to these persons and dispose of the
matter in accordance with law. It is also made clear that being a suit
of 1999 the matter be disposed of as expeditiously and not later than 5
months from today.
M.N. KRISHNAN, JUDGE.
rv
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