IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 16TH FEBRUARY 2009 / 27TH MAGHA 1930 CRP.No. 110 of 2009 AGAINST THE ORDER DATED 18/12/2008 IN IA.2271/2008 IN OS.166/2005 OF MUNSIFF'S COURT,CHAVAKKAD REVN. PETITIONER: RESPONDENT: --------------------- KOCHU, AGED 74 YEARS, S/O. THALOKKARA AYYAPPAN, PAZHANJI VILLAGE & DESOM, THALAPPILLY TALUK. BY ADV. SRI.RAJIT SRI.RANJIT BABU RESPONDENTS: PETITIONERS: --------------- 1. MUNDI, AGED 61 YEARS, D/O. NEDUMURI PARAMBIL PANANGADEN & . W/O.KOTHANATH MADHAVAN, PAZHENJI VILLAGE & DESOM, TALAPPILLY TALUK. 2. CHANDRAN, S/O. KOTHANATH MADHAVAN & 1ST DEFENDANT, DO.... 3. RAVI, S/O. DO.... 4. VINOD , S/O. DO..... 5. VIMALA, D/O. DO...... 6. OMANA, D/O. DO..... THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ C.R.P. NO. 110 OF 2009 ------------------------------------------------------ Dated this the 16th February, 2009 O R D E R The plaintiff in O.S.No.166 of 2005, on the file of the Court of the Munsiff of Chavakkad, has filed this Revision challenging the order dated 18.12.2008 in I.A.No.2271 of 2008, by which the court below allowed the application for extending the time for payment of costs, to be paid by the respondents as a condition for setting aside the exparte decree. The suit was filed by the petitioner for specific performance of an agreement to sell the plaint schedule property having an extent of 9 1/8 cents of land belonging to the respondents. In the Civil Revision Petition, it is stated that the agreement was dated 28.2.1983. Learned counsel for the petitioner submits that this is a mistake and the agreement was dated 28.2.1993. According to the petitioner/plaintiff, the entire consideration was paid to the respondents. The petitioner also claims to be in possession of the property. The fact remains that the suit was instituted only in 2005. The trial court passed an exparte decree dated 21.3.2005. 2. The respondents filed I.A.No.2183 of 2006 to set aside the exparte decree. That was allowed, as per the order dated 19.2.2008, on condition that the respondents shall pay a sum of Rs.1,000/- as costs before 26.2.2008. The order dated 19.2.2008 was not challenged by the C.R.P.110 OF 2009 NO. :: 2 :: petitioner and it has become final. The respondents failed to pay the costs within the stipulated time. They filed I.A.No.2271 of 2008 for extension of time for payment of the costs and to set aside the dismissal of the application for setting aside the exparte decree on account of the non-payment of costs within time. The court below allowed the application by the order impugned, on condition that apart from the costs already ordered for setting aside the exparte decree, the respondents herein shall pay a further sum of Rs.1,000/- as a condition for getting the application for setting aside the exparte decree restored. As stated earlier, the order setting aside the exparte decree is not under challenge. The only order under challenge is the order by which the court below restored the application for setting aside the exparte decree and extended the time for payment of costs. The court below exercised the discretion in favour of the respondents. It is seen from Annexure C affidavit filed by the first respondent, who is aged 63 years, that she has put her thumb impression in the affidavit. Prima facie, it would appear that she is illiterate. It is also stated in the affidavit that she was bedridden and that was why she did not pay the costs. Apparently, the court below was liberal in entertaining the application filed by the respondents, taking into account the peculiar facts and circumstances of the case. The discretion exercised by the court below is not liable to be interfered with in Revision. Yet another fact to be noticed is that though the petitioner states that the C.R.P.110 OF 2009 NO. :: 3 :: cause of action arose on 28.2.1993 orginally, he has filed the suit only in 2005. 3. The affidavit filed in support of I.A.No.2271 of 2008 is shown as dated 14.7.2008. The attestation by the Advocate was made on 11.7.2008. Learned counsel for the petitioner submitted that the attestation is not proper and, therefore, the affidavit cannot be relied on in support of the application. The application itself is dated 11.7.2008. In all probability, the date shown as 14.7.2008 must be a mistake. Similar mistake occurred at two places in the Civil Revision Petition where the petitioner has stated that the agreement is dated 28.2.1983 while at the time of arguments the petitioner stated that it is 28.2.1993. For such mistakes on the part of a party, I do not think that the relief granted by the court below exercising the discretionary jurisdiction should be interfered with by this court under Section 115 of the Code of Civil Procedure. For the aforesaid reasons, I decline to exercise the revisional jurisdiction. The Civil Revision Petition is accordingly dismissed. (K.T.SANKARAN) Judge ahz/