IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 12TH MARCH 2008 / 22ND PHALGUNA 1929 CRP.No. 241 of 2008() ------------------------------- CMA.56/2007 of III ADDL. DISTRICT COURT, KOLLAM OS.385/2002 of MUNSIFF COURT, KARUNAGAPPALLY .................... REVN. PETITIONER: RESPONDENTS 1 TO 3 IN CMA: ----------------------------- 1. KUTTY, D/O. KUNJU PENNU, AMBALASSERIL VEEDU, KOTTAMPALLI MURI, OACHIRA VILLAGE. 2. BHAVANI -DO-. 3. SADANANDAN, S/O. BHAVANI -DO-. BY ADV. SRI.ABRAHAM VAKKANAL SRI.PAUL ABRAHAM VAKKANAL SRI.ARUL KUMAR.P SRI.BIJIMON C.CHERIAN SRI.LOWEL CHERIAN RESPONDENTS: APPELLANTS & 4TH RESPONDENT IN CMA: ------------------------ 1. APPUKUTTAN, REPRESENTING TEMPLE SAMITHI, AMBALASSERY TEMPLE, KOTTAMPALLIL MURI, OACHIRA VILLAGE. 2. VIJAYAN, S/O. PADMANABHAN, EDAYILA VEEDU -DO-. 3. BHANUDAS, S/O. KUNJUKRISHNAN, CHERUKARA VEEDU -DO-. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRP. NO.241/2008 ORDER ON IA. NO.673/2008 IN CRP. 241/2008 DISMISSED 12.03.2008 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = C.R.P. NO. 241 OF 2008 = = = = = = = = = = = = = = = Dated this the 12th day of March, 2008. O R D E R This revision petition is preferred against the order of District Judge, Kollam in CMA 56/07 whereby the learned District Judge has set aside the order passed by the Munsiff, Karunagappally in I.A.1940/06 in O.S.385/07. A perusal of the materials produced before me would reveal that the learned Munsiff had wrote a considered judgment after declaring the defendant exparte and thereby made it a disposal under Order 17 which is capable of being set aside under Order 9 Rule 13. Now the only question is whether there are sufficient grounds to set aside the exparte decree. The principles to be followed in such matters are well laid down in Sreedhara Kurup v. Mickel (1968 KLT 599) whereby this Court held that: “It is largely a matter of wise discretion to be exercised by the Court bearing in mind the wholesome principle that the right of a party to be heard should be negatived only if there is gross CRP NO. 241 of 2008 -:2:- negligence or gross carelessness and that if some steps have been taken and application for restoration has been made with some diligence 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. The brooding spirit of natural justice must be the background while ascertaining whether there is sufficient cause. A strict and narrow construction defeats the ends of justice which can be reached only after a fair fight between the disputants.” 2. So the only point to be considered is whether there has been gross negligence or grave misconduct. I had gone through the judgment of the learned District Judge and it would show that the main point was regarding the non reception of documents at the stage of trial and though the defendants applied for getting the copy of the document on 20.10.06 they got it only on 20.11.06 and therefore they could not produce it in time by which they have to stay away from the Court at the stage of trial which resulted in an CRP NO. 241 of 2008 -:3:- exparte decree. It cannot be held that they were guilty of grave misconduct. The appellate court rightly observed that they should have applied for the copy sufficiently early and therefore there is laches on their part and therefore it can be compensated by ordering costs to the other side. Therefore this is a case where one cannot hold that there is gross negligence or grave misconduct. So the appellate court has applied the correct principles and had given an opportunity to the defendants to contest the case on merits. Therefore the C.R.P. is dismissed. But the learned counsel for the revision petitioner submits before me that the plaintiffs in the suit are old people of 89 and 69 years and they deserve sympathy at the hands of the Court at least for a speedy disposal of the matter. Therefore I direct the Court below to bestow personal attention and include the matter in the list as expeditiously as possible and dispose of the matter at any rate on or before 31.5.2008. M.N. KRISHNAN, JUDGE. ul/-