IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 199 of 2008()
1. THIRUMANGALATH MADHAVAN NAMBOODIRI,
... Petitioner
Vs
1. KOLORATH K.SURESH, S/O.KRISHNAN NAIR,
... Respondent
For Petitioner :SRI.T.SETHUMADHAVAN
For Respondent :SRI.K.JAYAKUMAR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :25/07/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
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C.R.P.Nos.199 & 207 of 2008
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Dated this the 25th July, 2008.
O R D E R
Petitioner in CRP.No.l99/2008 is the defendant in
O.S.No.18 of 2005 and plaintiff in O.S.No.36 of 2005 on the file of
Munsiff Court, Koyilandy. O.S.No.36/2005 was filed by the petitioner
for realisation of Rs.66,000/=. O.S.No.18/2005 is a suit instituted
by the respondent for realisation of Rs.85,000/=. Both the suits were
jointly tried. Petitioner remained absent on 5.2.2007 and the suits
adjourned to 9.2.2007. On that day, O.S.No.36/2005 was dismissed
for default and a decree as prayed for by the respondent was granted
in O.S.No.18/2005. Petitioner filed I.A.No.440 of 2005, an application
filed under Rule 13 of Order IX of Code of Civil Procedure, to set aside
ex parte decree in O.S.No.18/2005. He also filed I.A.No.441 of 2007 to
restore O.S.No.36/2005, under Rule 9 of Order IX of Code of Civil
Procedure. In both the petitions, petitioner contended that he was
hospitalised on 3.2.2007 and was discharged only on 8.2.2007, his
absence was not wilful and, therefore, ex parte decree is to be set
aside and the suit dismissed for default is to be restored.
CRP.Nos.199 & 207 of 2008
2
2. Respondent opposed both the applications
contending that there is no sufficient cause to set aside ex parte
decree or to restore the suit. It was contended that attempt of the
petitioner is only to protract the trial of the suits and he was not
hospitalised as claimed.
3. The learned Munsiff disposed the applications
separately by separate orders. No oral evidence was adduced, apart
from producing the medical certificate to prove sufficient cause for the
absence of the petitioner, when one suit was decreed ex parte and the
other suit was dismissed for default. Learned Munsiff dismissed both
the petitions.
4. Petitioner challenged dismissal of I.A.No.440 of 2005
before the Sub Court, Koyilandy, in C.M.A.No.12 of 2007 and
I.A.No.441 of 2007 in C.M.A.No.13 of 2007. Learned Sub Judge, as
per separate orders, confirmed the order of the learned Munsiff and
dismissed the appeals. C.R.P.No.199 of 2008 is filed challenging the
dismissal of I.A.No.440 of 2007 as confirmed in C.M.A.No.12 of 2007
and CRP.No.207 of 2008 is filed challenging the order in I.A.No.441
of 2007 as confirmed in C.M.A.No.13 of 2007.
CRP.Nos.199 & 207 of 2008
3
5. The learned counsel appearing for the petitioner and
the learned counsel appearing for the respondents were heard.
6. The learned counsel appearing for the petitioner
pointed out that though no oral evidence was adduced, petitioner has
produced medical certificate to establish that he was being treated as
an inpatient from 3.2.2007 till 8.2.2007, and the petitions were filed
within a period of 30 days from the date of dismissal of O.S.No.36 of
2005, and the ex parte decree passed in O.S.No.18 of 2005, and the
courts below should have taken a lenient view and granted
opportunity to the petitioner to have a decision on merits, and in such
circumstances, the orders are to be set aside. The learned counsel
submitted that petitioner is prepared to get ready in the suit and
learned Munsiff may be directed to dispose the suit within a time
frame.
7. The learned counsel appearing for respondent
argued that there is no bona fides in the petitions and the petitions
were rightly dismissed by the courts below. It was argued that suits
were originally disposed ex parte and subsequently opportunity was
granted to the petitioner, and even thereafter he was not willing to
CRP.Nos.199 & 207 of 2008
4
proceed with the suit, and that is the reason why suit filed by the
petitioner was dismissed and suit filed against respondent was
decreed. The learned counsel argued that when the petitions were
taken up by learned Munsiff, there was no request for adducing
evidence and no oral evidence was adduced, and in such
circumstances, courts below were justified in dismissing the
application. It was also submitted that petitioner was not serious in
prosecuting the petitions and even appeals were filed after inordinate
delay and the conduct of the petitioner shows that attempt is only to
protract the trial of the suits, and in such circumstances, as there is
no illegality or irregularity or jurisdictional error in the impugned
orders, the revision petitions are to be dismissed.
8. The fact that petitioner was earlier remained absent
and an ex parte decree was passed or suit was dismissed for default,
are not relevant facts, when the suits were subsequently restored
after setting aside the ex parte decree, by the court on satisfying
sufficient grounds for the absence. Hence, it is not a ground to
dismiss subsequent applications filed under Rule 13 of Order IX or
Rule 9 of Order IX of Code of Civil Procedure. The question to be
decided is when the petitioner remained absent on 5.2.2007 and the
CRP.Nos.199 & 207 of 2008
5
ex parte decree was passed on 9.2.2007, was there any sufficient
cause for his absence, and if so, whether ex parte decree is to be set
aside and suit is to be restored granting opportunity to the petitioner.
9. There is force in the submission of the learned
counsel appearing for the respondent that petitioner was not diligent
enough in prosecuting his suit or defending the suit instituted by the
respondent. That could only be the reason why the petitioner did not
adduce evidence in support of his contentions in the applications. In
the petition, the reason alleged for the absence was that he was being
treated as an inpatient in the hospital. Though the doctor who issued
the certificate was not examined, medical certificate was produced. It
shows that petitioner was being treated as an inpatient from 3.2.2007
to 8.2.2007. In such circumstances, it cannot be said that there is no
sufficient cause for the absence of the petitioner on 5.2.2007. Viewed
from that angle courts below should have taken a lenient view and
should have granted an opportunity to the petitioner to have a decision
on merits, but on terms. It is more so because the petitions to set
aside the decree and to restore the other suit were filed within the
period of limitation.
CRP.Nos.199 & 207 of 2008
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10. In such circumstances, the revision petitions are
allowed on terms. I.A.No.440 of 2005 and I.A.No.441 of 2005 will
stand allowed on the petitioner paying or depositing a cost of
Rs.2000/= to the respondent within two weeks from today, failing
which dismissal of the petitions as confirmed in C.M.A.Nos. 12 and 13
of 2007 will stand and the revisions will stand dismissed. If the cost is
paid, ex parte decree in O.S.No.18 of 2005 will stand set aside and
O.S.No.36 of 2005 will stand restored. In that event, petitioner shall
get ready for the trial of the suit and shall not seek any adjournment.
If the ex parte decree in O.S.No.18 of 2005 is set aside and
O.S.No.36 of 2005 is restored, learned Munsiff to dispose both the
suits within four months from the date of restoration.
Post on 13.8.2008 for reporting compliance.
M.SASIDHARAN NAMBIAR,
JUDGE
nj.