IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 19TH AUGUST 2010 / 28TH SRAVANA 1932 FAO.No. 178 of 2010() --------------------- I.A.NO.1946/2010 IN OS.695/2009 of PRINCIPAL SUB COURT,KOLLAM .................... APPELLANT/PETITIONER/PLAINTIFF: -------------------------------------------------------- MURALI, S/O. KOCHUCHERUKKAN, KANJIRAMVILA VEEDU, THAZHUTHALA VILLAGE, KOLLAM. BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL RESPONDENT(S): COUNTER PETITIONER/DEFENDANTS: -------------------------------------------------------------------------------------- 1. SYAMALA, W/O. REGHU, THUNDUVILAKOM, KALAKKODE, POTHAKULAM, PARAVOOR-691301. 2. RAHEESH, S/O. REGHU, THUNDUVILAKOM, KALAKKODE, POTHAKULAM, PARAVOOR-691 301. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 19/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------- F.A.O.No.178 of 2010 ------------------------------- Dated this the 19th day of August, 2010. JUDGMENT THOTTATHIL B. RADHAKRISHNAN,J. “CR” 1.The respondents do not appear and oppose the appeal. 2.The appellant is the plaintiff in a suit for realisation of money allegedly due under a promissory note. Defendants had filed written statement with counter claim. The case was posted for replication. It is submitted that the suit was dismissed on that day since the plaintiff's counsel could not reach the court to make appropriate representation. I.A.No.1946 of 2010 is stated to have been filed before the court FAO178/10 -: 2 :- below seeking to restore the suit. That has been dismissed by a single line order. 3.The application for setting aside the ex parte decree was filed on the plea that it was dismissed on the day on which it stood posted for the plaintiff to file pleadings in opposition to the counter claim of the defendants. Even if the court below was of the view that no further time could be granted to file such additional pleadings, the suit could not have been dismissed. At the worst, the counter claim could be treated as not contested. Yet, the suit had to be decided. This is because a counter claim filed by the defendant in a suit takes the characteristics of a suit by itself and has to be decided. Similarly, the mere non-contest of the counter claim by itself will not lead to the dismissal of the suit except in cases where the court may conclude at trial that the non-contest of the counter claim concludes the plaintiff in so far as the questions in the suit are FAO178/10 -: 3 :- concerned. Therefore, the dismissal of the suit on the day on which the case stood posted for the plaintiff to file pleadings in opposition to the counter claim is wholly unjustifiable. 4.When the application to set aside the ex parte decree was filed with the support of the affidavit of the counsel stating that he could not reach the court in time, the said reason ought to have been considered. The dismissal of the application by a single line order without stating any reasons is not called for, while deciding an application for restoring a dismissed suit. The reasons for this are more than one. Every judicial order granting or refusing a relief has to state the reasons in support of that decision. The litigant is entitled to know the reasons why the court issued an order either in his favour or against him. Not only that, an order refusing to restore a suit dismissed for default is one appealable to the superior court. The person entitled to file the appeal has to FAO178/10 -: 4 :- know the reasons for the dismissal of the application. Equally, the appellate court should be in a position to discern the reasons why the court of first instance issued the order which is appealed against. Stating reasons for a judicial decision is one of the inexcusable guarantees that a citizen has, in the justice delivery system. 5.In view of the above, we are satisfied that the impugned order deserves to be set aside and the suit restored. 6.Accordingly, we set aside the impugned order and hereby restore the suit O.S.No.695 of 2009 on the file of the Sub Court, Kollam. The order of attachment, which was available in the suit and which we had revived at the time of admission, by order on I.A.No.2466 of 2010 will continue to be alive. 7.The court below shall notify the counsel FAO178/10 -: 5 :- appearing for the defendants before it regarding the restoration of the suit and such notice shall be treated as due notice to the defendants. 8.It would be appropriate for the court below to take this judgment as a guidance for ensuring that such situation does not recur. Appeal is ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, JUDGE Sd/- S.S.SATHEESACHANDRAN, JUDGE prp-Sha/ - true copy - P.S.to Judge.