IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 31ST MARCH 2010 / 10TH CHAITHRA 1932 CRP.No. 190 of 2010 ----------------------------- [IA.NOS.1296 & 1297/2009 IN OS.NO.558/2006 OF I ADDL.MUNSIFF COURT, NEYYATTINKARA] .................... REVISION PETITIONER/1ST COUNTER PETITIONER/PLAINTIFF: ------------------------------------------------------------------------------------------- DANAM, S/O. SADANANDAN NADAR, AGED 55, KULAMAMKUZHY KIZHAKKETHIL PUTHEN VEEDU, VELIYAMCODE, MAMPAZHAKKARA DESOM, PERUMPAZHUTHOOR VILLAGE. BY ADV. MR.R.GOPAN. RESPONDENTS/PETITIONER & 2ND CR. PETITIONER/DEFENDANTS: -------------------------------------------------------------------------------------------------- 1. MICHAEL, S/O. GEORGE, RESIDING AT KULAMAMKUZHY ROADARIKATHU VEEDU, VELIYAMCODE, MAMPAZHAKKARA DESOM, PERUMPAZHUTHOOR VILLAGE. 2. CHANDRAMOHANAN, S/O. DARMANADHAN, THOONGAMPARA ROADARIKATHU VEEDU, MARANALLOOR VILLAGE. BY THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------------------- CRP No.190 of 2010 ------------------------------------- Dated 31st March 2010 Order This Civil Revision Petition is directed against the order dated 23.12.2009 passed by the Additional Munsiff's Court-II, Neyyattinkara in IA No.1297 in OS No.558/06. 2. The revision petitioner has filed OS No.558/06 for declaration of easement right, prohibitory and mandatory injunction. The respondents filed a written statement, denying the contentions in the plaint. An Advocate Commission was taken and he has filed a report and plan. On the date on which the case was listed for trial, PW1 was examined. On 7.7.2008, when the case was taken up, the first defendant and his counsel were absent. The trial court had framed four issues for consideration and decided all the issues on the basis of the evidence on record and the suit was decreed with costs on 15.07.2008. CRP 190/10 2 3. On 24.02.2009, the first respondent filed IA No.1296/09 in OS No.558/06 for setting aside the ex parte decree along with an IA for condoning the delay in filing the IA for setting aside the ex parte decree. The said IAs were allowed by the Court below. 4. According to the petitioner, the 1st defendant had deliberately absented from participating in the suit and the reasons given by him for seeking to set aside the ex parte decree, are not justified. In fact, it is pointed out that the Court below found that there was wilful laches and negligence on the part of the first defendant before the Court below. The learned counsel for the petitioner pointed out that the Court below was not justified in allowing the petitions filed by the first defendant. The first defendant had participated initially in the suit and he remained absent on 07.07.2008 when the suit was listed for trial. It was after taking evidence that the suit was decreed. After having found that there was negligence on the part of the first defendant, the Court below was not justified in setting aside the CRP 190/10 3 ex parte decree. The learned counsel in support of his contentions, relied on the decision in Joseph John v. Joseph (2001(3) KLT 525). 5. There is no merit in the above contentions of the petitioner. The Court below, which is a Trial Court, on an appreciation of the materials before it, has come to a conclusion that interest of justice demands that an opportunity should be afforded to the first defendant to contest the case on merits. The Court below also awarded costs of Rs.2,000/- to the respondents. True, there has been wilful laches and negligence on the part of the first defendant. But the Court below was impressed by the reasons given by the first defendant for non- appearance on the date on which the suit was listed for trial. It is true that in the decision relied on by the petitioner, it was held on facts that there was no sufficient cause for non appearance and therefore it was held that the discretion was not to be exercised. In the case on hand, the Court below has found that even though the reasons given by the first defendant were not very convincing, the Court below thought it fit to exercise its CRP 190/10 4 discretion in favour of the first defendant. The said exercise of discretion does not seem to be perverse or illegal, warranting interference by this Court. Since the Court below has chosen to accept the case of the first defendant, no interference is called for. This Petition is without any merits and it is accordingly dismissed. P.BHAVADASAN, JUDGE sta CRP 190/10 5