IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 9TH JUNE 2011 / 19TH JYAISHTA 1933 CRP.No. 85 of 2011() --------------------------- CMA.3/2009 of SUB COURT, CHERTHALA OS.722/2007 of ADDL.MUNSIFF COURT,CHERTHALA .................... REVN. PETITIONERS/ APPELLANTS: ---------------------------------------------------- 1. VYASA SWAYAM SAHAYA SANGAM, REG.NO.410/5/SEED/SHG/M, MUHAMMA P.O,REP.BY ITS PRESIDENT, K.V.ANANDAN,KALATHIL,MUHAMMA P.O,ALAPPUZHA. 2. SECRETARY,SREENIVASAN,AGED 43, S/O.MADHAVAN VALIYAVEETTIL,MUHAMMA P.O, ALAPPUZHA. 3. TREASURER,VISWANATHAN, VATTAPARAMBIL HOUSE,MUHAMMA P.O,ALAPPUZHA (DIED) BY ADV. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA RESPONDENT(S): --------------- T.V.VALSAMMA,W/O.BAHULEYAN, ILLICKAL HOUSE,CHARAMANGALAM MURI, MUHAMMA P.O, CHERTHALA. PIN - 688 524. ADV. DR.V.N.SANKARJEE FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: smt K.T.SANKARAN, J. ------------------------------ C.R.P.No.85 OF 2011 ------------------------------ Dated this the 9th day of June, 2011 ORDER The petitioners, who are the defendants in O.S.No.722 of 2007 on the file of the Court of the Additional Munsiff of Cherthala, were set ex parte and an ex parte decree was passed on 8.2.2008. They filed an application to set aside the ex parte decree on 17.6.2008. There was a delay of 102 days in filing the application for setting aside the ex parte decree and the petitioners filed an application for condonation of delay. The trial court, by the order dated 5.1.2009, dismissed the applications. The petitioners filed CMA No.3 of 2009 challenging that order. The Appellate Court dismissed the C.M.Appeal by the judgment dated 17.9.2010, which is under challenge in this Civil Revision Petition. 2. The suit was filed for money. The defendants were C.R.P.No.85 OF 2011 2 served with summons but, they did not appear. The case of the petitioners is that the second defendant was in charge of the litigation and as he was working at Coimbatore, he could not appear before the Court. The petitioners stated that they made arrangements to defend the case and they engaged a counsel for that purpose. The application for setting aside the ex parte decree was not filed within time. In the affidavit filed by the second defendant in support of the application for condonation of delay, it was stated that since he was at Comibatore, he could not make arrangements to file the application for setting aside the ex parte decree. 3. The plaintiff contended that the reasons stated by the defendants for setting aside the ex parte decree and for condonation of delay are untrue. The application for condonation of delay was filed only on 17.6.2008. The ex parte decree was passed on 8.2.2008. Exts.B1 to B3 were produced by the defendants to show that on 25.3.2008, the second defendant participated in an auction conducted by the Muhamma panchayat and that on 23.2.2008 the defendants executed a vakkalath to C.R.P.No.85 OF 2011 3 appear in C.C.No.1231 of 2007 on the file of the Court of the Judicial Magistrate of the First Class, Cherthala. The documents produced by the defendants would conclusively establish that the second defendant was available in station during February and March, 2008. The ex parte decree was passed in February and an application to set aside the decree was passed only in June,2008. The question to be considered is whether the defendants were prevented by sufficient cause from appearing before the court on the date on which the suit was posted. The further question to be considered is whether the reason stated by the defendants for condonation of delay is genuine. If it is found that the averments made are false, the application is liable to be dismissed, irrespective of the number of days of delay. Even if the delay is more, if sufficient reasons are stated, the delay is liable to be condoned. At the same time, if a false case is set up, the delay cannot be condoned even if the delay is for a lesser period. 4. The Courts below considered all the aspects of the case and held that the applications cannot be allowed. There is no illegality, irregularity or error of jurisdiction warranting C.R.P.No.85 OF 2011 4 interference under Section 115 of the Code of Civil Procedure. The Civil Revision Petition is accordingly, dismissed. K.T.SANKARAN, JUDGE. cms