IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 14TH OCTOBER 2010 / 22ND ASWINA 1932 CRP.No. 150 of 2010() --------------------- IA 6554/2008 IN OS.261/2005 of PRINCIPAL SUB COURT,THRISSUR .................... REVN. PETITIONER(S): PLAINTIFF: ------------------------------- SAKTHAN KURIES AND LOANS PRIVATE LTD. PALLIKULAM ROAD, CHEMBOOKKAVU VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT, REPRESENTED BY ITS CHAIRMAN, MR.P.P.JOSE. BY ADV. SRI.RANJITH XAVIER RESPONDENT(S): DEFENDANTS 1&2: ------------------------------ 1. SABU K.M., AGED 49 YEARS, S/O.MANIAN, RESIDING AT KATTUNGAL HOUSE, THUMBOLI DESOM, ARYAD SOUTH VILLAGE, AMBALAPUZHA TALUK, ALAPPUZHA DISTRICT. 2. PRASANNA KUMARI, AGED 42 YEARS, W/O.SABU K.M., KATTUNGAL HOUSE, THUMBOLI DESOM, ARYAD SOUTH VILLAGE, AMBALAPUZHA TALUK, ALAPPUZHA DISTRICT. ADV. SRI.B.S.SIVAJI FOR R1& R2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- C.R.P.No.150 of 2010 -------------------------------------- Dated this the 14th day of October, 2010. ORDER This revision arises from the order dated December 12, 2008 on I.A.No.6554 of 2008 in O.S.No.261 of 2005 of the court of learned Principal Sub Judge, Thrissur. That is a suit for money filed by the petitioner based on an alleged chitty transaction. Respondents/defendants appeared in court and filed written statement taking up various contentions including that the suit is not maintainable being premature. The case was posted for trial in the list on 17.12.2007. Respondents and counsel remained absent. Consequently, an exparte decree was passed on 17.12.2007. On 05.09.2008 respondents filed I.A.No.6554 of 2008 to set aside the exparte decree and I.A.No.6553 of 2008 to condone the delay of 234 days in filing I.A.No.6554 of 2008. In the affidavit in support of the application it is stated that respondents were out of station during the relevant time and were not aware of the exparte decree. In connection with a cheque allegedly issued by respondent No.2 in favour of petitioner according to the petitioner in satisfaction of the exparte decree) the latter issued notice of dishonour in preparation of preferring a complaint under Section 138 of the Negotiable Instruments Act. Respondents contended that it is from that notice that they learnt about the exparte decree. Petitioner preferred his objection to CRP No.150/2010 2 both the applications on 20.10.2008. I.A.No.6553 of 2008 to condone the delay came up before learned Sub Judge for consideration on 27.11.2008. Learned Sub Judge passed the following order: “Heard both sides. I.A. is allowed on payment of cost of Rs.3,000/- within 15 days. Or else this order stands as cancelled.” Though respondents offered cost to the petitioner, the latter did not accept it. Thereon respondents deposited cost in the court below. Noting that learned Sub Judge disposed of I.A.No.6554 of 2008 as per order dated 12.12.2008 in the following words: “Delay condoned, on depositing cost. No objection, I.A. is allowed. Call the suit on 19.1.2009.” The order on I.A.No.6554 of 2008 is under challenge in this petition. Correctness of the order on I.A.No.6553 of 2008 condoning delay is also challenged in this revision. Learned counsel for petitioner contends that notwithstanding that petitioner had preferred objection to the applications, learned Sub Judge has proceeded as if there was no objection. It is contended that the impugned orders are cryptic and there is no consideration of the explanation offered by CRP No.150/2010 3 respondents for their absence on 17.12.2007. Learned counsel for respondents contend that even if objection was preferred no such objection was pressed at the time the matter was heard and accordingly learned Sub Judge passed the impugned orders. It is pointed out by learned counsel that the suit is coming up for trial on 15.10.2010. 2. No doubt, petitioner had preferred objections to the applications on 20.10.2008. I.A.Nos.6553 of 2008 and 6554 of 2008 came up before the learned Sub Judge for hearing later. But it is seen from order dated November 27, 2008 on I.A.No.6553 of 2008 that it was after hearing both sides that learned Sub Judge was inclined to condone the delay on terms of cost. There is no reason to think that the objection preferred by petitioner was not before the learned Sub Judge while the impugned order was passed. Learned Sub Judge thought that having regard to the circumstances stated in the affidavit in support of the application it is a case where delay has to be condoned on terms of cost and accordingly delay was condoned on condition of payment of cost of Rs.3,000/-. I do not forget that the learned Sub Judge has not passed a detailed order on I.A.No.6553 of 2008. But, in the circumstances stated above, when the learned Sub Judge has exercised discretion to allow the application on payment CRP No.150/2010 4 of cost presumably because the learned Sub Judge thought that on the facts and circumstances of the case respondents must be given an opportunity to contest the case I do not find it necessary to interfere with that order. 3. Now turning to the order on I.A.No.6554 of 2008 learned Sub Judge has observed that there was no objection in allowing the application. There is no case for petitioner that counsel for petitioner was not heard when I.A.No.6554 of 2008 was disposed of. In otherwords after hearing both sides learned Sub Judge observed in the order dated December 12,2008 that there was no objection. If that was wrong, remedy of petitioner was to seek review before learned Sub Judge stating that it was not a case that petitioner had no objection. That was not done. Apart from that, impugned orders are dated 27.11.2008 and 12.12.2008 and this petition itself is filed with a delay of 331 days (it is a different matter that the delay is condoned by a separate order). I do not find it necessary to send back the case to the learned Sub Judge for reconsideration for the reason that the impugned orders are passed in November/December, 2008 and this revision is preferred on 15.03.2010 and now suit itself is coming up for trial in the list on 15.10.2010. Allowing this revision at this stage would disturb the schedule arranged by the learned Sub CRP No.150/2010 5 Judge for trial and disposal of the suit. Parties can now contest the suit and get a decision on merit. In these circumstances I do not find reason to interfere with the impugned orders. Resultantly this revision fails. It is dismissed. I.A.No.717 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks