IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 CRP.No. 453 of 2009() --------------------- AGAINST THE ORDER DATED 08/07/2009 IN IA.327/06 IN OS.70/2004 of SUB COURT,THODUPUZHA .................... PETITIONER(S): RESPONDENT – DEFENDANT: --------------------------------------------------------------------- SEKHARAN, S/O. SIVARAMAN, KIZHAKKETHERUVATHIL VEEDU, THUNDANGANADU KARA, MUTTOM VILLAGE NOW RESIDING AT THE BUILDING OF S.B. PANICKER, RENJITH NIVAS, KARAMUKKU, INTERMEDIATE ROAD JUNCTION, ARAKKULAM. BY ADV. MR.T.I.ABDUL SALAM RESPONDENT(S): PETITIONER: PLAINTIFF: ----------------------------------------------------------------- SAMUEL, S/O. MOSSES, PAREPURACKAL HOUSE, KALIYAR KARA, VANNAPURAM VILLAGE. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON I.A.NO.2503/2009 IN CRP.NO.453/2009 DISMISSED 20/08/2009 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- C.R.P.No.453 of 2009 --------------------------------- Dated this the 20th day of August, 2009 O R D E R Revision is filed against the order dated 8.7.2009 in I.A.No.327 of 2006 in O.S.No.70 of 2004 passed by the learned Sub Judge, Thodupuzha. Petitioner is the defendant in the above suit which was filed by the respondent. Suit was one for a decree of prohibitory injunction. Petitioner/defendant on entering appearance in the suit filed a written statement in which he raised a counter claim of injunction against the plaintiff. On the date when the case was listed for trial, counsel for the plaintiff reported that the suit was not pressed. Consequently, his suit was dismissed. The counter claim raised by the defendant was taken up and it was decreed ex-parte. Respondent/plaintiff thereafter moved an application under Order IX Rule 13 CPC to set aside the exparte decree passed against him allowing the counter claim raised by the petitioner/defendant. Propriety and correctness of that order is challenged in the revision. 2. I heard the learned counsel for the petitioner. 3. Having regard to the submissions made and taking note C.R.P.No.453 of 2009 2 of the facts and circumstances presented, I find no notice to the respondents is necessary and hence it is dispensed with. 4. The learned Sub Judge after appreciating the materials tendered in the enquiry on the application for setting aside the ex- parte decree, according to the counsel, found that there were latches and default on the part of the plaintiff against whom a decree was passed allowing the counter claim raised by the petitioner/defendant. However, that ex-parte decree was ordered to be set aside on terms directing the plaintiff to pay a sum of Rs.2,000/- as cost to the defendant. When it has been found that plaintiff has not established sufficient cause for setting aside ex- parte decree passed against him, the counsel submits, the court below was not justified in allowing his application for setting aside the exparte decree on terms. Perusing P9 order, I find, after examining the facts and circumstances involved, the learned Sub Judge, even after finding that sufficient cause has not been made out by the plaintiff, exercised his discretion for setting aside ex- parte decree subject to terms. The order so passed by the learned Sub Judge, it is seen, is based on discretion, which cannot be found fault with unless it is shown that the exercise was improper and not C.R.P.No.453 of 2009 3 in consonance with the sound principles of law. The learned Sub Judge has taken care to compensate the injury suffered by the defendant by directing the plaintiff to pay a sum of Rs.2,000/- as a condition precedent for setting aside the ex-parte decree. From the submissions made by the learned counsel I find, the suit claim as well as the counter claim arose from an agreement of sale entered between the parties which remains yet to be completed. The learned counsel for the petitioner submits that the suit filed by him for specific performance of an agreement of sale is still awaiting adjudication. When that be so, I find the application filed by the respondent to set aside the decree which was allowed by the learned Sub Judge, that too, only on terms does not call for any interference, as it appears, a decision in counter claim on merits is necessary to advance the ends of justice. The revision is devoid of any merit and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-