IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 7TH JANUARY 2008 / 17TH POUSHA 1929 CRP.No. 1282 of 2003 AGAINST THE ORDER DATED 07/02/2003 IN IA 4291/1999 IN OS.666/1996 of II ADDL.SUB COURT,TRIVANDRUM REVN. PETITIONER: RESPONDENT/PLAINTIFF: --------------------------------------- GEORGE JOSEPH, AGED 47, R.B.I, QUARTERS NO.32, NANTHENCODE, THIRUVANANTHAPURAM. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENTS: PETITIONERS/DEFENDANTS 1 TO 4: ------------------------------------------- 1. M/S. FIN BANKERS AND INVESTORS, G.R.BUILDINGS, KOTTAPPURAM P.O., VIZHINJAM, THIRUVANANTHAPURAM. 2. MARY FRANCIS, AGED 38 YEARS, W/O. FRANCIS ROSARIO, PROPRIETOR,M/S.FIN BANKERS AND INVESTORS, RESIDING AT `PAUL VILLA', VALIYA THOPPU, VALLAKADAVU, THIRUVANANTHAPURAM. 3. FRANCIS ROSARIO, AGED 42 YEARS, PROPREITOR AND PROMOTER, M/S. FIN BANKERS AND INVESTORS, RESIDING AT PAUL VILLA, VALIYATHOPPU, VALLAKKADAVU, THIRUVANANTHAPURAM-8. 4. THOMAS, S/O. MATHEW MADAKKAL THAMPALAKKADUKARA, KAPPAD, KANJIRAPPALLY VILLAGE, KOTTAYAM DISTRICT. R2 TO R4 BY ADV. SRI.L.MOHANAN SMT.LIGEY ANTONY THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: I.A.NO.298/2003 IN C.R.P.NO.1282/2003 DISMISSED 7/1/2008 SD/- K.T.SANKARAN, JUDGE //TRUE COPY// AHZ/ K.T.SANKARAN, J. -------------------------------------------- C.R.P. NO. 1282 OF 2003 E -------------------------------------------- Dated this the 7th January, 2008 O R D E R This Revision is filed by the plaintiff in O.S.No.666 of 1996, on the file of the Court of the II Additional Subordinate Judge, Thiruvananthapuram, challenging the order passed by the court below allowing an application under Order IX Rule 13 of the Code of Civil Procedure. 2. In O.S.No.666 of 1996 filed by the petitioner herein, the defendants were set exparte and an exparte decree was passed on 15.9.1999. The defendants filed application under Order IX Rule 13 of the Code of Civil Procedure. In the application, it was stated that defendants 2 and 3 went to Bombay in search of a job for the third defendant and the third defendant was affected by chicken pox from 27.8.1999 onwards. The defendants came back at Thiruvananthapuram only on 30.9.1999. By that time, the suit was decreed exparte on 15.9.1999. 3. Before the court below, the second defendant was examined as PW1 and the plaintiff was examined as DW1. The court below C.R.P.NO. 1282 OF 2003 :: 2 :: considered the oral evidence in the case and held that there is no reason to disbelieve the version of PW1. Accordingly, the court below passed the impugned order, by which the application to set aside the exparte decree was allowed on payment of costs of Rs.500/-. Normally, when an application under Order IX Rule 13 of the Code of Civil Procedure is allowed, a Revision at the instance of the plaintiff will not be entertained unless there is patent illegality or any other circumstance warranting interference, in the facts and circumstances of the case. In the present case, the court below has considered the evidence on record and held that the case put forward by the defendants can be accepted. Discretion was exercised by the court below in allowing the application. Such a discretion cannot be interfered with in a Revision under Section 115 of the Code of Civil Procedure. Accordingly, the Civil Revision Petition is dismissed. No order as to costs. (K.T.SANKARAN) Judge ahz/ K.T.SANKARAN, J. ------------------------------------------- ------------------------------------------- C.R.P.NO. 1282 OF 2003 O R D E R 7th January, 2008 -------------------------------------------