IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 28TH FEBRUARY 2008 / 9TH PHALGUNA 1929 CRP.No. 182 of 2008() --------------------- CMA.17/2005 of DISTRICT COURT, MANJERI I.A.No.160/04 IN OS.54/1996 of SUB COURT, MANJERI .................... REVN. PETITIONER: RESPONDENT/RESPONDENT(PLAINTIFF): --------------------------------------------------- KALLARA KOLATTUMMAL MUHAMMED HAJI, S/O. KOMUKUTTY HAJI, OLAVATTOOR AMSOM, DESOM, AROOR, ERNAD TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.K.R.KURUP SRI.C.R.SYAMKUMAR SRI.JOSE KURIAN SRI.C.R.VINOD KUMAR RESPONDENTS: APPELLANTS/PETITIONERS (DEFENDANTS): ------------------------------------------------- 1. P.T.RASIYA, D/O. LATE MAMMEDKKUTTY HAJI,POOLAKKAL THALAKOTTIRI HOUSE, OLAVATTOOR AMSOM, AROOR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. 2. P.T. ABDUL SAMAD, S/O. LATE MAMMEDKKUTTY HAJI,POOLAKKAL THALAKOTTIRI HOUSE, OLAVATTOOR AMSOM, AROOR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- C.R.P. NO. 182 OF 2008 --------------------- Dated this the 28thday of February, 2008 ORDER This revision petition is preferred against the order of the District Judge, Manjeri, in CMA 17/05. It was an appeal preferred against the order of the Subordinate Judge whereby he had dismissed the application to set aside the ex parte decree. The defendants were set ex parte. It is submitted that the 2nd defendant was in charge of prosecuting the matter. As she was laid up with acute lumbago she was under the treatment of Doctor and hence she could not attend the court on the day when the case was listed. Therefore the suit happened to be decreed as ex parte. In support of the contentions she got herself examined as PW1 and the Doctor was examined as PW2. The Doctor had deposed that petitioner approached him for her treatment while he was working as a civil surgeon in the Primary Health Centre, Alanallur. The trial court did not accept the evidence. But the appellate court found that the appreciation of evidence has to be done properly to do justice to the parties and came to the conclusion that the ex parte decree can be C.R.P. NO.182/08 2 set aside. In the decision reported in Sreedhara Kurup v. Mickel [1968 KLT 599] this court had given the principles to be applied on the cases. “It is to be remembered that the broad principle of natural justice that informs our judicial institution is that a litigant should not be deprived of a hearing unless there has been something equivalent to misconduct or gross negligence on his part. It is largely a matter of wise discretion to be exercised by the Court bearing in mind the wholesome principle that the right of a party to be heard should be negatived only if there is gross negligence or gross carelessness and that if some steps have been taken and application for restoration has been made with some diligence and some evidence adduced making out a sufficient cause for absence, restoration should be ordered, minor misconduct or laches being corrected by the common curative of costs. The brooding spirit of natural justice must be in the background while ascertaining whether there is sufficient cause. A strict and narrow construction defeats the ends of justice which can be reached only after a fair fight between the disputants.” 2. Applying the dictum to the facts of this case, it is true that an application was filed on the previous day before the case was posted for trial and the application for setting aside the ex parte decree was filed in time. The Doctor was examined to prove that the petitioner was suffering from lumbago. So one cannot attribute grave misconduct or gross negligence so as to deprive an opportunity of fair hearing to the party. The learned District Judge has approached the matter in the correct perspective and therefore the civil revision petition is C.R.P. NO.182/08 3 dismissed. Needless to say that since the matter is of the year 1996, the Subordinate Judge, is directed to dispose of the matter as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this order. M.N.KRISHNAN, JUDGE vps C.R.P. NO.182/08 4