IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 24TH SEPTEMBER 2009 / 2ND ASWINA 1931 CRP.No. 149 of 2009() ------------------------------- CMA.19/2007 of SUB COURT,ALAPPUZHA OS.13/2005 of PRINCIPAL MUNSIFF,ALAPPUZHA (IA. 2725 /2007) .................... REVN. PETITIONER(S): APPELLANT/DEFENDANT ------------------------------- SEETHAMMA,AGED 64 YEARS,D/O.MEENAKSHI AMMA VYSHYAM BHAGOM MURI,NEDUMUDI VILLAGE,KUTTANADU. BY ADVS.MR.K.S.HARIHARAPUTHRAN MR.GEORGE MATHEW RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------- PURUSHOTHAMA KURUP,RAMANATHAPURAM VEEDU, VYSHYAM BHAGOM MURI,NEDUMUDI VILLAGE, KUTTANADU. R1 BY ADV. MR.P.R.VENKETESH THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss S.S.SATHEESACHANDRAN, J. ----------------------------- C.R.P.No.149 OF 2009 -------------------------- Dated this the 24th day of September 2009 ------------------------------------- ORDER The revision is directed against the judgment dated 25/06/2008 in CMA No.19 of 2007 passed by the learned Sub Judge, Alappuzha. In the above appeal, the learned Sub Judge confirming the order passed by the learned Munsiff, Alappuzha, dismissing an application moved by the petitioner/defendant to set aside the exparte decree, dismissed the appel. Petitioner who suffered such orders from two courts below has filed this revision impeaching the correctness of the orders passed by the courts below. 2. I heard the counsel on both sides. Suit filed by the respondent was one for recovery of possession. Admittedly petitioner/defendant did C.R.P.No.149 OF 2009 Page numbers not file the written statement within the time fixed. It is also seen from the order passed by the learned Principal Munsiff that there was false representation as to filing of the written statement when the case stood posted for that purpose. Later, after exparte decree was passed, the defendant moved an application for setting aside that exparte decree. From time to time while the trial proceeded, the order of the learned Munsiff has shown, the petitioner was seeking enlargement of time. Whatever that be, on the enquiry conducted over the petition filed for setting aside the exparte decree, the learned Munsiff was not satisfied with the cause canvassed that the petitioner suffered from cardiac complaints, which, according to her, prevented her from appearing before the court. No medical evidence was also tendered by the petitioner to substantiate the cause so canvassed for her absence which lead to passing of the exparte decree. C.R.P.No.149 OF 2009 Page numbers The reasons which weighed by the learned Munsiff in dismissing the application for setting aside the exparte decree moved by the petitioner/defendant, it seems, also impressed the learned Sub Judge to concur with the conclusion formed that the petitioner has not made out sufficient cause for setting aside the exparte decree. Perusing the order passed by the learned Munsiff and also judgment of the learned Sub Judge, I find, both the courts have given too much importance to what transpired in the suit before exparte decree was passed against the defendant. Of course that can also be looked into in examining the merit of the case canvassed by the defendant against the exparte decree passed. But her absence on the date of hearing, which lead to an exparte decree being passed against her is the crucial question to be considered. The merit of the case and also what transpired earlier have to be looked into with reference to the cause pleaded on the date of C.R.P.No.149 OF 2009 Page numbers hearing which lead to passing of the exparte decree. Likewise, the non production of the medical evidence by the petitioner to doubt the genuineness of the cause shown by her also does not appeal to me. In an application under Order 9 Rule 13 of the Code of Civil Procedure, no doubt, the burden is on the petitioner/defendant who seeks for setting aside the exparte decree to substantiate sufficient cause for his/her absence on the date of hearing of the suit. But in analysing the question, whether she had sufficient cause or not, what is to be looked into is, whether there was wilful and culpable latches on the part of the defendant for nonappearance. When that is not so, having regard to human conduct and the lack of vigilance that could be expected from a human being, it has to be stated that for one or other reasons a party could have been prevented from appearing before the court on the hearing of the case. No counter evidence has been let in by the C.R.P.No.149 OF 2009 Page numbers plaintiff in the case to show that there was culpable neglect and wilful latches on the part of the defendant in appearing before the court on the date of hearing other than canvassing that the defendant was negligent in filing the written statement at the proper time and, further, interested only in seeking enlargement of time from time to time. So much so, in the given facts of the case, I find that the petition filed by the defendant for setting aside the exparte decree has to be allowed granting her an opportunity to have a decision of the suit on merits, but that can be done only by compensating the injury likely to be suffered by the respondent/plaintiff by setting aside a decree passed in his favour nearly two years ago. So much so, setting aside the exparte decree as desired by the petitioner/defendant can be allowed only subject to payment of cost of Rs.3,000/- to the respondent/plaintiff to compensate the loss and injury likely to be C.R.P.No.149 OF 2009 Page numbers suffered by the respondent. Cost ordered shall be paid to the counsel appearing for the respondent before this court within two weeks from the date of this judgment and a memo filed on or before 16/10/2009. In default of payment of cost within the time stipulated, the revision shall stand dismissed without any further orders. Revision is disposed as indicated above. Post on 20/10/2009 for report. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv