IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 851 of 2006()
1. SURENDRAN NAIR, S/O.VISWANATHAN NAIR,
... Petitioner
Vs
1. NESSAYYAN, S/O.THENKAYYAN NADAR,
... Respondent
For Petitioner :SRI.G.SUDHEER
For Respondent :SRI.S.V.PREMAKUMARAN NAIR
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :28/01/2009
O R D E R
PIUS.C.KURIAKOSE, J.
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C.R.P.No. 851 OF 2006
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Dated this the 28th day of January, 2009
ORDER
Under challenge in this civil revision petition under Section 115
of Code of Civil Procedure is the judgment of the Subordinate Judge,
Neyyattinkara in C.M.A.No.8/06 by which the order passed by the
Munsiff, Neyyattinkara in applications for restoration of the suit and
for condonation of the delay caused in the matter of filing the
application for restoration was dismissed.
2. Heard Sri.G.Sudheer, learned counsel for the petitioner and
Sri.R.T.Pradeep, learned counsel for the respondent. The petitioner is
the plaintiff and the suit is for recovery of money based on a
promissory note. The suit stood posted for trial in special list on
17/10/2003. On that day, the petitioner plaintiff was not present.
Instead, his counsel filed an application under Order XVII Rule 1 CPC
seeking adjournment of the suit on the ground that the petitioner is
undergoing treatment as impatient in the Government Hospital,
Parassala for dysentery. The learned counsel did not become inclined
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to allow the application and the suit was dismissed for default on
17/10/2003.
3. Later on 17/08/2004 i.e. ten months after the expiry of
period of limitation for filing the restoration application, the present
application was filed raising a different ground. The ground now
raised is that the petitioner was undergoing treatment from PW2, a
Homeopath, for Arthritis, Rheumatism and allied diseases. At the
enquiry, the petitioner got himself examined as PW1 and the doctor
who had issued Ext.A1 certificate was examined as PW2. There was
no counter evidence on the side of the respondent. However, the
learned Munsiff was not inspired by the evidence given by PW1 and
PW2. It was noticed that the petitioner had conflicting versions in the
earlier application for adjournment and in the present application for
restoration. The court was not satisfied about the sufficiency of the
cause stated by the petitioner and accordingly the applications were
dismissed. The learned Subordinate Judge also in appeal concurred
with the conclusions of the learned Munsiff.
4. It will be stated immediately that there is considerable force
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in the submission of Sri.R.T.Pradeep that the order passed by the
learned Munsiff and the judgment of the learned Subordinate Judge do
not suffer from any infirmity and much less any judicial infirmity as to
justify invocation of the revisional jurisdiction under Section 115 CPC.
5. On reading through the order of the Munsiff and the
judgment of the learned Sub Judge, I also feel that the conclusions
therein are fairly reasonable and it cannot be stated that there has been
irregular or illegal exercise of discretion by those courts in the matter
of condonation of delay. At the same time, I notice the following
aspects:
1) The reply notice which is produced along
with the suit and which is to be construed as part of the
pleadings will reveal that the defendant had admitted the
execution of the promissory note.
2) The plaintiff ordinarily does not stand to gain
anything by deliberately protracting the trial of his own
suit.
3) The learned Subordinate Judge has accepted
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the argument addressed on behalf of the plaintiff that the
plaintiff was actually present before the Munsiff Court on
17/10/2003. But it is clear that the plaintiff was not
present on 17/10/2003 as will be seen from the
application for adjournment filed on behalf of the plaintiff
by the counsel on that day.
4) The application for adjournment filed under
Order XVII Rule 1 by the counsel for the plaintiff which
is in conflict with the present application for restoration
and for condonation of delay is not supported by any
affidavit. Therefore the version of the petitioner that
there was some communication gap between the person
who imparted instructions to the advocate for preparing
the application for adjournment and the Advocate cannot
be said to be totally improbable. After all, the policy of
law is to facilitate adjudication of all causes on their
merits. Having regard to that policy, I am inclined to
allow the application for restoration and the application
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for condonation of delay, however, only on stringent
conditions.
6. The result is that the impugned orders will stand set aside
and the two applications filed by the petitioner for restoration and
condonation of delay will stand allowed subject to the following
conditions:
1) The petitioner shall pay a sum of
Rs. 5,000/-( Rupees five thousand only) by way
of cost ( irrespective of the ultimate result of the
litigation) to the respondent either directly or
through the respondent’s counsel in this court
within three weeks from today.
2) The petitioner shall furnish security
before the Munsiff Court for the defendant’s cost
in the suit ( the Advocate fee payable as per the
Advocate Fee Rules plus a sum of Rs. 250/-)
within one month of receiving a copy of this
judgment.
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3) Even if the suit is ultimately decreed
after trial, no interest will be payable on the
principal amount mentioned in the promissory
note during the period from 17/10/2003 till today
i.e. 28/01/2009.
If the conditions 1 and 2 mentioned above are complied with on
time by the petitioner, this judgment will become operative, in which
case, the learned Munsiff will list the suit for trial in special list in the
earliest available list and dispose of the suit in accordance with law.
The learned Munsiff will not be influenced in any manner by any of the
observations contained herein regarding the merits of the contentions
raised in the suit.
PIUS.C.KURIAKOSE
JUDGE
sv.
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