IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 CRP.No. 851 of 2006() --------------------- CMA.8/2006 of SUB COURT,NEYYATTINKARA OS.27/2003 of II ADDL.M.C.,NEYYATTINKARA (IA.3793 & 3792/2004) .................... REVN. PETITIONER(S): --------------------- SURENDRAN NAIR, S/O.VISWANATHAN NAIR, MALATHATTAM PUTHEN VEEDU, KARUMANOOR, PALUKAL VILLAGE, KANNYAKUMARI DISTRICT, TAMILNADU. BY ADV. SRI.G.SUDHEER RESPONDENT(S): --------------- NESSAYYAN, S/O.THENKAYYAN NADAR, CHENNAKATHU PUTHEN VEEDU, PALIYODU, KOVIL NEDUNGODU DESOM, ANNAVOOR VILLAGE, NEYYATTINKARA. ADV. SRI.S.V.PREMAKUMARAN NAIR FOR R1 SRI.R.T.PRADEEP FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - C.R.P.No. 851 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - 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 CRP.No.851/06 2 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 CRP.No.851/06 3 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 CRP.No.851/06 4 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 CRP.No.851/06 5 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. CRP.No.851/06 6 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. CRP.No.851/06 7