IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 17TH OCTOBER 2011 / 25TH ASWINA 1933 CRP.No. 426 of 2011() --------------------- CMA.5/2011 of SUB COURT, NEDUMANGAD OS.229/1998 of PRINCIPAL MUNSIFF'S COURT,NEDUMANGAD (IA 4446/2009) .................... REVISION PETITIONER(S): RESPONDENT: ---------------------------------------------------------------- SUNILKUMAR, S/O.SIVASANKARA PILLAI, PAMPADY HOUSE, NEAR MUTHARAMMAN KOVIL, VADAKKUMKARA MURI, NEDUMANGAD VILLAGE. BY ADVS. SRI.G.S.REGHUNATH, SRI.K.RAJESH KANNAN, SRI.A.S.SHAMMY RAJ, SRI.P.SHANES. RESPONDENT(S): APPELLANTS: ------------------------------------------------- 1. BALAKRISHNA PILLAI, S/O. AYYAPPAN PILLAI, PAMBADY ESTATE HOUSE, BAINS COMPOUND, NANTHANCODE, KOWDIAR VILLAGE, KOWDIAR P.O., THIRUVANANTHAPURAM-695 013. 2. DR. UNNIKRISHNAN NAIR, S/O. BALAKRISHNA PILLAI, PAMBADY ESTATE HOUSE, BAINS COMPOUND, NANTHANCODE, KOWDIAR VILLAGE, KOWDIAR P.O., THIRUVANANTHAPURAM-695 013. ADV. SRI.V.M.KURIAN FOR CAVEATOR THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/10/2011 ALONG WITH CRP.NO.452 OF 2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P. JOSEPH, J. -------------------------------------- C.R.P. Nos.426 and 452 of 2011 -------------------------------------- Dated this the 17th day of October, 2011. ORDER These civil revisions arise from the common judgment dated 01.08.2011 of learned Sub Judge, Nedumangad, in C.M.A.Nos.5 and 6 of 2011. Those appeals arose from the dismissal of I.A.Nos.4446 and 4445 of 2009 in O.S.No.229 of 1998 of the court of learned Principal Munsiff, Nedumangad. 2. An exparte decree was passed in favour of the petitioner/plaintiff on 26.07.2001. Respondents filed I.A.No.4445 of 2009 to set aside that exparte decree with I.A.No.4446 of 2009 to condone the delay of 3335 days claiming that they had no knowledge about the decree in the case since during pendency of the suit petitioner had promised to withdraw the suit. Those applications were resisted by petitioner on various grounds contending that suit was originally decreed exparte in favour of petitioner, later set aside on the request of respondents and again respondents remained absent and an exparte decree was passed. Petitioner also contested the claim of respondents that they had no knowledge about the decree and claimed that there was no sufficient explanation for the delay in filing I.A.No.4445 of 2009. On the said applications, 1st respondent gave evidence as PW1. Learned Munsiff was not impressed by the reasons stated by respondents for their absence in the court on 27.07.2001 and for the delay in filing I.A.No.4445 of 2009. Consequence was a dismissal of CRP Nos.426 & 452/2011 2 the said applications. Respondents challenged those orders in C.M.Appeals as above stated. Learned Sub Judge after referring to the facts of the case observed that petitioner has not filed any counter affidavit as to the allegation of fraud pleaded by respondents (as regards the offer (allegedly) made by petitioner to withdraw the suit and later, resiling from that). Learned Sub Judge placed reliance on the decision in Balvant Singh v. Jagdish Singh (AIR 2010 SC 3043), held that a literal approach is required in the matter and allowed the C.M.Appeals. The common judgment of learned Sub Judge in the C.M.Appeals is under challenge in these civil revisions. 3. Learned counsel for petitioner has contended that apart from the fact that on the factual situation respondents are not entitled to get the exparte decree set aside, there is no proper explanation for the delay in filing I.A.No.4445 of 2009. It is contended by the learned counsel that unless the delay is properly explained, the court has no discretionary jurisdiction to condone the delay as is clear from the wordings of Sec.5 of the Limitation Act which states that the court 'may' condone the delay if the applicant shows sufficient cause. Reliance is placed on the decisions in Ramlal and others v. Rewa Coalfields Ltd. (AIR 1962 SC 361 – Paragraph 7), Ramachandran v. State of Kerala (1997 (2) KLT 647) and Mahesh Yadav and another v. Rajeshwar Singh and others((2009) 2 SCC 205). It is pointed out by the learned counsel that in the last of the decisions, CRP Nos.426 & 452/2011 3 observations in paragraph 17 would show that the impugned order was set aside and matter was remitted to the court concerned for the reason that the appellate court had not analysed the evidence while deciding to set aside the exparte decree to find whether there was a case made out to set aside the decree. It is submitted by the learned counsel that the appellate court has not entered a finding whether there was sufficient cause for the delay in filing I.A.No.4445 of 2009, not to say about the reasons stated by the respondents for their absence in the court on 26.07.2001. In that situation it was not open to the appellate court to have displaced the order passed by the learned Munsiff on the respective applications. 4. Learned counsel for respondents argued that 1st respondent when examined as PW1 was in a sedative mood on account of application of drugs as he was aged about 86 years was not able to give proper answers to certain questions when he was examined on commission which prevailed with the learned Munsiff to hold that there was no proper explanation for the delay and absence of respondents on 26.07.2001. Learned counsel submits that though a request for examining the 2nd respondent (son of the 1st respondent) was made, that was not allowed. 5. So far as the last argument is concerned, learned counsel for petitioner would contend that in the light of the evidence given by 1st respondent as PW1 there was absolutely no scope for examining the 2nd respondent and that too, to fill up the lacuna in the evidence of 1st respondent. CRP Nos.426 & 452/2011 4 6. Having gone through the common judgment of learned Sub Judge I am inclined to think that it is not necessary for this Court to go into the case on its merit for, learned Sub Judge has not adverted to the relevant aspects of the matter in deciding whether the delay is to be condoned and the exparte decree, set aside. The decisions referred supra would show that the discretionary jurisdiction of the court to condone the delay would arise only when the court is satisfied that there is sufficient cause shown by the applicant. The court has to enter a finding that there is sufficient cause for the delay and then only the question of exercising discretionary jurisdiction to condone the delay arises. It has also to be ascertained whether respondents had sufficient cause for their absence in court when the exparte decree was passed on 26.07.2001. Since the impugned common judgment does not satisfy the above requirements, without going into the merit of the contentions raised by either parties, I am inclined to interfere and send the matter back to the learned Sub Judge for fresh decision. 7. So far as arguments which both sides have advanced are concerned I make it clear that it is open to them to raise all their contentions before the learned Sub Judge,. Learned Sub Judge has to consider the materials on record and reach appropriate conclusions. Resultantly these civil revisions are allowed. The common judgment dated 01.08.2011 in C.M.A.Nos.5 and 6 of 2011 of the court of learned Sub Judge, Nedumangad is set aside and those C.M.Appeals are remitted to the said CRP Nos.426 & 452/2011 5 court for fresh decision as provided under law after considering the evidence on record and the submissions of counsel on both sides. The execution proceedings in O.S.No.229 of 1998 of the court of learned Principal Munsiff, Nedumangad will stand in abeyance until the C.M.Appeals are disposed of by the learned Sub Judge. Parties shall appear before the learned Sub Judge on 17.11.2011. Learned Sub Judge shall expedite disposal of the C.M.Appeals. I.A.No.2233 of 2011 in C.R.P.No.426 of 2011 and I.A.No.2360 of 2011 in C.R.P.No.452 of 2011 will stand dismissed. THOMAS P.JOSEPH, Judge. cks