IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 CRP.No. 261 of 2009() --------------------- AGAINST THE ORDER IN IA 3278/2005 IN AS.121/2005 of PRL.SUB COURT,IRINJALAKUDA .................... PETITIONER(S): RESPONDENTS/PLAINTIFFS: ------------------------------------------------------------------- 1. DEVASSY,(DIED), ANKAMALI HOUSE,THORAVU VILLAGE, MUKUNDAPURAM TALUK. 2. GEORGE,S/O.LATE DEVASSY, ANKAMALI HOUSE,THORAVU VILLAGE, MUKUNDAPURAM TALUK. 3. SHEELA,D/O.LATE DEVASSY, ANKAMALI HOUSE,THORAVU VILLAGE, MUKUNDAPURAM TALUK. BY ADV. MR.V.M.KRISHNAKUMAR RESPONDENT(S): APPELLANT/DEFENDANT: ------------------------------------------------------------------- DAVIS,S/O.PALLIPPURAM CHAKKUNNY, ERAVIMANGALAM DESOM,NADATHARA VILLAGE, THRISSUR TALUK,NOW RESIDING AT POOCHINNIPPADAM,VALLACHIRA DESOM. BY ADV. MR.P.K.SAJEEV THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ----------------------------- C.R.P.No.261 OF 2009 -------------------------- Dated this the 17th day of July 2009 ------------------------------------- O R D E R The revision is directed against the order dated 12/08/2008 in I.A 3278/2005 in A.S 121/2005 passed by the learned Principal Sub Judge, Irinjalakuda. The defendant in O.S 242/2002 on the file of the Munsiff Court, Irinjalakuda filed the above appeal against the exparte decree rendered against him with a petition to condone delay of 694 days. The respondent in the revision was the plaintiff in the above suit, and the respondent in the appeal. Suit was one for reconveyance of an immovable property and injunction. The case of the plaintiff in brief was that towards the availing of a loan of Rs.25,000/-, he executed a sale deed in favour of the defendant on condition of reconveying C.R.P.No.261 OF 2009 2 the property after discharge of the loan by monthly payments with interest. Though the sale deed was executed only as a security providing a period of two years for reconveyance of the property after discharge of the loan, there was default on the part of the defendant to honour that oral agreement, and setting forth such a case the suit was instituted. Suit was decreed exparte. Against that decree the defendant filed the above appeal with a petition to condone delay as aforesaid. The learned Principal Sub Judge after conducting an enquiry over the petition moved to condone the delay, in which the appellant/petitioner and two advocates were examined, allowed the application and condoned the delay under the impugned order. Propriety and correctness of that order is impeached by the respondent/plaintiff contending that the order suffer from jurisdictional infirmity. C.R.P.No.261 OF 2009 3 2. I heard the counsel on both sides. The learned counsel for the revision petitioner submitted that before filing the appeal, the petitioner had applied for setting aside the exparte decree moving an application under Order 9 Rule 13 of the Code of Civil Procedure, that too with a petition for condoning delay. That petition was allowed and the suit was restored to file. After the restoration of the suit also default of the defendant in appearing on the date when the case was posted for hearing led to passing an exparte decree again. The defendant again moved an application under Order 9 Rule 13 of Code of Civil Procedure for setting aside that exparte decree. That was also dismissed for default. Thereafter, according to the counsel, the appeal was preferred with a petition to condone the inordinate delay of 694 days. The learned Sub Judge allowed that application against which a revision was preferred by the respondent/plaintiff, and this court set aside the order of the learned Sub Judge and C.R.P.No.261 OF 2009 4 remitted the case for fresh disposal subject to some directions. Pursuant to that remission petitioner examined himself and two advocates to substantiate his case that latches and neglect on the part of his counsel led to the passing of the exparte decree. It is urged by the learned counsel for the revision petitioner that the learned Principal Sub Judge after finding that there was neglect on the part of the defendant allowed the petition to condone the delay on terms of Rs.5,000/-. When neglect was proved against the defendant, the court below could not have allowed the application on terms is the argument canvassed by the learned counsel for the petitioner. To substantiate that submission reliance is placed on “Mathai v Rosamma” (1992(2) KLT Short Notes Case 35) and “Raghbir Singh v State of Haryana” (2009 (1) KLT Short Notes 24 (Case No. 25 SC)). The order impugned in the revision suffers from jurisdictional infirmity since discretion has been wrongly exercised by the learned Sub Judge in C.R.P.No.261 OF 2009 5 condoning delay. According to the learned counsel for the plaintiff the impugned order is improper, illegal and unsustainable under law. On the other hand the learned counsel for the respondent submitted that specific directions had been issued in the Order dated 05/03/2007 passed by this court in C.R.P 113/2007 which was filed by the very same petitioner impeaching the correctness and legality of the previous order passed by the learned Sub Judge allowing the petition to condone delay. This court in the previous order, according to the counsel, extended an opportunity to the defendant to examine the two advocates against whom an imputation was made that their latches led to the passing of the exparte. On the basis of such evidence, if so let in, after the remission, the court below was directed to enter a finding as to whether the delay in filing the appeal has to be condoned or not. So the essential question that required to be considered by the court was whether the latches on the part of the advocates engaged C.R.P.No.261 OF 2009 6 by the defendant for defending him in the suit, if so found, according to the counsel, neglect or latches on his part has no significance as the enquiry was specifically directed so by orders passed by this court on revision. The court below has found that there was some latches on the part of his advocates, probably on account of the injury suffered by one of them who had met with an accident and that too could have caused the passing of the exparte decree. When that be so, it is submitted by the learned counsel, it cannot be stated that the discretion exercised by the learned Sub Judge in allowing the application for condoning the delay suffered from any jurisdictional infirmity. Further more it is submitted that the condonation of delay ordered by the learned Sub Judge depends upon the discretion vested with that judicial officer and unless its exercise is shown to be improper this court may not be justified in interfering with the order. C.R.P.No.261 OF 2009 7 3. Having regard to the submissions made by the counsel on both sides with reference to the facts and circumstances involved, I find that in the light of the order passed by this court in C.R.P 113/2007 whatever default on the part of the defendant the previous orders passed under Order 9 Rule 13 of Code of Civil Procedure may not have any relevance at all. This court has given some directions how the enquiry has to be proceeded with. If on the materials placed in that enquiry the cause shown by the defendant for condoning the delay is made out then whatever transpired earlier before such enquiry cannot be pressed into service by the plaintiff to contend that there were latches on the part of the defendant. The observations of this court in the order passed in the above C.R.P read thus. “The lower Appellate Court shall examine the petitioner and the said two lawyers if cited by the petitioner as witnesses and then consider as to whether there is any merits in the allegations made against the lawyers. It is made C.R.P.No.261 OF 2009 8 clear that unless the petitioner examining those lawyers as well, the petitioner shall not be entitled to any remedy in the matter of getting the delay condoned. The court below shall afford a reasonable opportunity to the petitioner to tender evidence and also to examine the aforesaid two lawyers in support of I.A 3278/05.” The observations made by this court as above clearly indicate the findings to be entered in the petition should be based on the evidence let in by examining the petitioner as well as the two lawyers against whom neglect was imputed by the petitioner in defending his case. Perusing the order of the court below I find the learned Principal Sub Judge was satisfied in arriving at the conclusion that because of the physical ailment suffered by one of the two advocates there was latches on their part in defending his case. When that be so, the irresistible conclusion follows that the discretion exercised by the learned Sub Judge in condoning the delay that too on terms cannot be found fault with. C.R.P.No.261 OF 2009 9 The decisions referred to by the learned counsel for the petitioner have no application to the facts of the case. In considering the merit of a delay petition the court will be justified in taking into consideration the merit of the suit claim as well in respect of which an exparte decree had been passed. I do not want to express any opinion on the suit claim which is based on an oral agreement alleged to have been entered by the parties. Whereas the defendant has a case that after execution of the sale deed plaintiff was permitted to be in occupation under a rental arrangement for a period and after expiry of that period a notice issued for surrender was responded with a reply notice contending that he was allowed to continue in occupation towards consideration of Rs.10,000/- advanced as loan the plaintiff has set up a case that the sale deed was executed as security for a loan of Rs.25,000/- with an oral agreement to reconvey it on discharge of the loan after a period of two years. I find the disputed questions C.R.P.No.261 OF 2009 10 involved require to be adjudicated by the court, and a decision against one party declaring him exparte will cause injustice. Courts are instrumentalities to render justice and to the extent possible decisions have to be entered on merits affording reasonable opportunity to the parties involved to lead evidence in support of their respective case. The learned Sub Judge has also taken into consideration the injury that is likely to be suffered by the plaintiff in condoning the delay in entertaining of the appeal by ordering the appellant to pay a sum of Rs.5,000/- as a condition precedent for condoning the delay. I find that compensation awarded is reasonable having regard to the period which is sought to be condoned. The impugned order which has been passed by the learned Principal Sub Judge in exercise of his discretion cannot be termed as improper, but, on the otherwise seen to be in tune with sound legal principles required to advance the ends of justice. C.R.P.No.261 OF 2009 11 4. I direct the learned Sub Judge to hear and dispose the appeal preferred against the exparte decree, after affording reasonable opportunity to both sides as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. Writ petition is dismissed. Hand over a copy of the order to the counsel on both sides on usual terms. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv