IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 2ND DECEMBER 2009 / 11TH AGRAHAYANA 1931 WP(C).No. 28649 of 2009(O) -------------------------- CMA.34/2007 of ADDL. DISTRICT COURT, THALASSERY I.A.924/06 IN OS.176/2001 of MUNSIFF COURT, THALASSERY .................... PETITIONER: --------------- M/S. SREYAS WHOLE SALE SAREE DEALERS, THALASSERY, REPRESENTED BY ITS MANAGING PARTNER MANOJ P., S/O.SIVADAS, 'NAVAJYOTHI', THIRUVANGAD, THALASSERY, KANNUR DISTRICT. BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. SRI.GEORGE JOSEPH PULIMOOTTIL SRI.VINEETH KURIAKOSE SMT.N.MAHALAKSHMI RESPONDENT: --------------- V.K.ASHRAF, S/O.ABOOBACKER, V.K.HOUSE, CHETTAMCOON, THALASSERY, KANNUR DIST. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(WPC 28649/09) PETITIONER'S EXTS.: EXT.P1: TRUE COPY OF THE PLAINT FILED BY THE PETITIONER AS O.S.176/01 BEFORE THE MUNSIFF COURT, TELLICHERRY DT. 11.4.01. EXT.P2: TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT/DEFENDANT IN O.S.176/01 DT. 11.4.02. EXT.P3: TRUE COPY OF THE EX PARTE JUDGMENT IN O.S.176/01 DT. 16.7.2004. EXT.P4: TRUE COPY OF THE EX PARTE DECREE IN O.S.176/01 DT. 16.7.04. EXT.P5: TRUE COPY OF THE E.P.325/04 IN O.S.176/01 DT. 4.11.04. EXT.P6: TRUE COPY OF THE AFFIDAVIT FILED BY THE RESPONDENT AS I.A.347/05 IN O.S.NO.176/01 DT. 2.2.05. EXT.P7: TRUE COPY OF THE AFFIDAVIT FILED BY THE RESPONDENT AS I.A.572/06 IN O.S.NO.176/01 DT. 28.2.2006. EXT.P8: TRUE COPY OF THE AFFIDAVIT FILED BY THE RESPONDENT AS I.A.573/06 IN O.S.176/01 DT. 28.2.2006. EXT.P9: TRUE COPY OF THE EX PARTE DECREE IN O.S.176/01 DT. 10.3.2006. EXT.P10: TRUE COPY OF THE AFFIDAVIT FILED BY THE RESPONDENT AS I.A.924/06 IN O.S.176/01 DT. 7.4.2006. EXT.P11: TRUE COPY OF THE ORDER IN I.A.924/06 IN O.S.176/01 DT. 22.11.06. EXT.P12: TRUE COPY OF THE JUDGMENT PASSED BY THE ADDITIONAL DISTRICT JUDGE, TELLICHERRY IN C.M.A.34/07 DT. 30.6.09. S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.28649 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 2nd December, 2009 JUDGMENT The Writ Petition is filed seeking mainly the following reliefs: 1. To call for the records connected with the case. 2. To issue a writ of certiorari or other appropriate writ or order quashing or setting aside Ext.P12 order passed by the Additional District Judge, Tellicherry in C.M.A.34/2007, dt. 30.6.2009 and restore Ext.P11 order in I.A.924/2006 in O.S.176/2001, dt. 22.11.2006 on the file of the Munsiff Court, Tellicherry. 2. Petitioner is the plaintiff in O.S.No.176 of 2001 on the file of the Munsiff Court, Thalassery. The above suit was one for money, and the respondent was the defendant. Suit was decreed ex parte as the defendant remained absent at trial after filing a written statement resisting the suit claim. An application for setting aside the ex parte decree moved by the respondent/defendant was dismissed by the learned Munsiff vide P11 order, but, in appeal, the learned District Judge reversed P11 order and set aside the ex parte decree vide P12 judgment. Propriety and correctness of that judgment is challenged in the writ petition invoking the supervisory jurisdiction vested with this W.P.C.No. 28649/09 - 2 - court under Article 227 of the Constitution of India. 3. Notice was given to the respondent. Despite service of notice, he has not appeared. I heard the counsel for the petitioner. It is submitted that the suit claim was based on purchase of textiles on credit basis by the respondent. A cheque issued by him towards the price of the textiles, on presentation, got bounced, and thereupon, the suit was laid. The defendant resisted the suit claim contending that only a sum of Rs.5000/- was due under the transaction. When the suit was listed for trial, respondent remained absent and an ex parte decree was passed on 16.7.2004. P5 execution petition was filed by the petitioner/decree holder on the basis of the decree passed in the suit, and in which steps were taken to attach a motor vehicle belonging to the respondent. At that stage, respondent moved P6 application for setting aside the ex parte decree. The decree passed ex parte was, thereupon, set aside and the case was again listed for trial on 4.3.2006. Again when the case was listed for trial, the respondent remained absent and the suit was decreed ex parte. Respondent moved again for setting aside the ex parte decree filing P10 application. That application, after enquiry, was dismissed by the learned Munsiff vide P11 order. The learned District Judge, in appeal W.P.C.No. 28649/09 - 3 - against P11 order, it is submitted, rendered P12 judgment allowing the application for setting aside the ex parte decree reversing the order of the court below. Inviting my attention to P12 judgment, learned counsel for the petitioner submitted there is not even a definite finding that the respondent was prevented by sufficient cause for his nonappearance when the case was listed for trial. Perusing P12 judgment, I find considerable force in the submission made by the learned counsel. Other than adverting to the contentions canvassed by the defendant resisting the suit claim, and the plea raised by his counsel for a liberal approach in considering an application moved for setting aside an ex parte decree and reference to two decisions, one by the apex court and another by this court, how an application under Order 9 Rule 13 of the C.P.C. is to be considered there is no finding that the respondent was prevented by sufficient cause from appearing before the court on the date of hearing of the suit or to differ from the conclusion formed by the learned Munsiff under P11 order that there was no merit in his petition and it had been filed only to protract the litigation. Facts and circumstances presented in the case would show that twice ex parte decree had been passed against the respondent, and the previous occasion, the court had shown W.P.C.No. 28649/09 - 4 - indulgence by setting aside the decree passed against him. When second time a decree was passed ex parte against him, whatever be the liberal approach to be followed in setting aside the ex parte decrees, in the absence of sufficient cause justifying his absence before the court on the hearing date of the suit, it is impermissible to set aside that decree. P12 judgment rendered by the learned District Judge without adverting to the facts and circumstances involved and appreciating the merit of the case canvassed by the respondent for setting aside the ex parte decree, interfering with the reasoned P11 order of the learned Munsiff, is clearly unsustainable and it is liable to be set aside. I do so. P11 order of the learned Munsiff dismissing the application moved by the respondent for setting aside the ex parte decree is restored. Writ Petition is allowed as above. srd S.S. SATHEESACHANDRAN, JUDGE