IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 23RD OCTOBER 2008 / 1ST KARTHIKA 1930 CRP.No. 782 of 2008 ----------------------------- CMA.NO.4/2008 OF SUB COURT, QUILANDY, I.A. NO. 549/2007 IN OS.NO.36/2005 OF MUNSIFF COURT, PERAMBARA. .................... REVN. PETITIONERS/ APPELLANTS/ PETITIONERS - DEFENDANTS: ------------------------------------------------------------------------------------------------ 1. VAZHAYIL MEETHAL HYRUNNISSA, D/O. KUNHABDULLA, PERAMBRA AMSOM, DESOM, THANDOORAPPARA POST, KOYILANDY TALUK. 2. KUNHAMMED, S/O. KUNHAMMEDKUTTY, VADAKKEKARACHALIL HOUSE, PERAMBRA AMSOM DESOM THANDAROPPARA POST, KOYILANDY TALUK. 3. K.P. KUNHABDULLA MOULAVI, S/O. MOIDEEN MUSALIYAR, KALAYATHURATH HOUSE, PERAMBRA AMSOM, DESOM, KOYILANDY TALUK, THANDORAPPARA POST. BY ADV. SRI.SANTHARAM.P. RESPONDENT/ RESPONDENT: -------------------------------------------- SECRETARY, KOOTHALI SERVICE CO-OPERATIVE BANK LTD., BEARING REGISTRATION NO. D 2609, KOOTHALI POST, PERAMBRA, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/10/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. THOMAS P. JOSEPH, J. ------------------------------------------------------ C.R.P. NO.782 OF 2008 ------------------------------------------------------ Dated this the 23rd day of October, 2008 O R D E R Petitioners are the defendants in O.S.36/2005 filed by the respondent/plaintiff. They were set ex-parte on 19-6-2007 and suffered an ex-parte decree on 29-6-2007 for payment of money. Petitioners filed I.A.No.549/2007 to set aside the ex-parte decree. That application was dismissed. C.M.A.No.4/2008 was also dismissed. Hence, this revision. 2. Learned counsel for petitioners contended that the first petitioner/first defendant, against whom serious allegations are raised in the plaint and who is conversant with the facts of the case was looking after her mother who was undergoing treatment for Rheumatism in an ayurveda hospital and was not in station. Petitioners could not get the relevant documents from the advocate who was conducting the connected criminal case against the first petitioner. They could not also take copies of the C.R.P.No.782/2008 - 2 - documents produced by the respondent/plaintiff in the trail court a few days back. So, first petitioner could not be present in the trial court on 29-6-2007. According to the learned counsel, sufficient cause was made out for absence on 29-6-2007 but that was not considered by the courts below. It is also contended by learned counsel that the suit itself is barred under Section 100 of the Kerala Co-operative Societies Act. 3. It was on the allegation that the first petitioner who was the collection agent of respondent bank misappropriated a sum of Rs.45,000/- she received from the various depositors and that herself and petitioners 2 and 3 who had undertaken to indemnify the respondent against loss caused by the first petitioner are also liable that the respondent filed suit. Now what is required to be considered is only whether interference under Section 115 of the Code of Civil Procedure is required. 4. The only reason stated for absence in the trial court on 29-6-2007 is that first petitioner was looking after her C.R.P.No.782/2008 - 3 - mother who was undergoing treatment for Rheumatism in an ayurveda hospital. It came out that the first petitioner who is involved in the criminal proceedings on the very same allegation of misappropriation has been regularly appearing in the criminal court. Learned counsel pointed out that though there is an observation in the judgment of the trial court that first petitioner had appeared in the criminal court on 27-6-2007, in fact there was no such posting in the criminal court on that date. If that be so, first petitioner could very well be present in the trial Court on 29-6-2007. It is also to be borne in mind that petitioners 2 and 3 have no explanation for their absence in the trial court on 29-6- 2007. Another fact to be noted is the failure of the counsel for petitioners to be present in the trial court on 29-6-2007. Counsel could have requested the trial court for an adjournment. Petitioners were set ex-parte on 19-6-2007 on which day the suit was posted for trial in the list and ex-parte decree and judgment were passed only on 29-6-2007. If the petitioners were sincere in conducting the case, they could have requested the trial court to re-open the case on any day between 19-6-2007 and 29-6-2007, C.R.P.No.782/2008 - 4 - which also was not done. Petitioners did not also produce any document to show the alleged illness and inpatient treatment of the mother of the first petitioner. 5. This court sitting in revision is not required to re- appreciate evidence. Appellate court has considered the evidence and found that no sufficient cause was made out. In revision, what is required to be considered is only whether there is any illegality or irregularity committed by the courts below. I find no illegality or irregularity in the proceedings of the courts below or the orders under challenge requiring interference. This C.R.P. is therefore, dismissed. Sd/- THOMAS P. JOSEPH, JUDGE skr // True copy // P.A. to Judge.