IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 25TH JULY 2008 / 3RD SRAVANA 1930 C.R.P.No. 199 of 2008(D) --------------------- ( AGAINST THE JUDGMENT DATED 31/01/2008 IN CMA. NO.12/2007 ON THE FILE OF THE SUBORDINATE JUDGE, KOYILANDY; ON APPEAL FROM THE ORDER DATED 13/04/2007 PASSED IN R.P.L.A. NO. 440/2007 IN O.S. NO.18/2005 OF THE MUNSIFF'S COURT, KOYILANDY) REVISION PETITIONER:- (APPELLANT/PETITIONER/DEFENDANT) -------------------------------------------------- THIRUMANGALATH MADHAVAN NAMBOODIRI, S/O.MADHAVAN NAMBOODIRI, EDAKKARA AMSOM, KOLAKKAD DESOM, KOZHIKODE DISTRICT. BY ADV. SRI.T.SETHUMADHAVAN RESPONDENT:- (RESPONDENT/RESPONDENT/PLAINTIFF) ----------------------------------------------- KOLORATH K.SURESH, S/O.KRISHNAN NAIR, THALAKULATHUR AMSOM, DESOM, KOZHIKODE DISTRICT. BY ADV. SRI.K.JAYAKUMAR - R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/07/2008 ALONG WITH C.R.P. NO. 207 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.R.P.No. 199 / 2008 ORDER ON I.A.NO.571 OF 2008 AND I.A. NO.1661 OF 2008 IN C.R.P. NO.199 OF 2008 DISMISSED SD/- 25/07/2008 M. SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ P.A. TO JUDGE scm M.SASIDHARAN NAMBIAR, J. ------------------------------- C.R.P.Nos.199 & 207 of 2008 ------------------------------- Dated this the 25th July, 2008. O R D E R Petitioner in CRP.No.l99/2008 is the defendant in O.S.No.18 of 2005 and plaintiff in O.S.No.36 of 2005 on the file of Munsiff Court, Koyilandy. O.S.No.36/2005 was filed by the petitioner for realisation of Rs.66,000/=. O.S.No.18/2005 is a suit instituted by the respondent for realisation of Rs.85,000/=. Both the suits were jointly tried. Petitioner remained absent on 5.2.2007 and the suits adjourned to 9.2.2007. On that day, O.S.No.36/2005 was dismissed for default and a decree as prayed for by the respondent was granted in O.S.No.18/2005. Petitioner filed I.A.No.440 of 2005, an application filed under Rule 13 of Order IX of Code of Civil Procedure, to set aside ex parte decree in O.S.No.18/2005. He also filed I.A.No.441 of 2007 to restore O.S.No.36/2005, under Rule 9 of Order IX of Code of Civil Procedure. In both the petitions, petitioner contended that he was hospitalised on 3.2.2007 and was discharged only on 8.2.2007, his absence was not wilful and, therefore, ex parte decree is to be set aside and the suit dismissed for default is to be restored. CRP.Nos.199 & 207 of 2008 2 2. Respondent opposed both the applications contending that there is no sufficient cause to set aside ex parte decree or to restore the suit. It was contended that attempt of the petitioner is only to protract the trial of the suits and he was not hospitalised as claimed. 3. The learned Munsiff disposed the applications separately by separate orders. No oral evidence was adduced, apart from producing the medical certificate to prove sufficient cause for the absence of the petitioner, when one suit was decreed ex parte and the other suit was dismissed for default. Learned Munsiff dismissed both the petitions. 4. Petitioner challenged dismissal of I.A.No.440 of 2005 before the Sub Court, Koyilandy, in C.M.A.No.12 of 2007 and I.A.No.441 of 2007 in C.M.A.No.13 of 2007. Learned Sub Judge, as per separate orders, confirmed the order of the learned Munsiff and dismissed the appeals. C.R.P.No.199 of 2008 is filed challenging the dismissal of I.A.No.440 of 2007 as confirmed in C.M.A.No.12 of 2007 and CRP.No.207 of 2008 is filed challenging the order in I.A.No.441 of 2007 as confirmed in C.M.A.No.13 of 2007. CRP.Nos.199 & 207 of 2008 3 5. The learned counsel appearing for the petitioner and the learned counsel appearing for the respondents were heard. 6. The learned counsel appearing for the petitioner pointed out that though no oral evidence was adduced, petitioner has produced medical certificate to establish that he was being treated as an inpatient from 3.2.2007 till 8.2.2007, and the petitions were filed within a period of 30 days from the date of dismissal of O.S.No.36 of 2005, and the ex parte decree passed in O.S.No.18 of 2005, and the courts below should have taken a lenient view and granted opportunity to the petitioner to have a decision on merits, and in such circumstances, the orders are to be set aside. The learned counsel submitted that petitioner is prepared to get ready in the suit and learned Munsiff may be directed to dispose the suit within a time frame. 7. The learned counsel appearing for respondent argued that there is no bona fides in the petitions and the petitions were rightly dismissed by the courts below. It was argued that suits were originally disposed ex parte and subsequently opportunity was granted to the petitioner, and even thereafter he was not willing to CRP.Nos.199 & 207 of 2008 4 proceed with the suit, and that is the reason why suit filed by the petitioner was dismissed and suit filed against respondent was decreed. The learned counsel argued that when the petitions were taken up by learned Munsiff, there was no request for adducing evidence and no oral evidence was adduced, and in such circumstances, courts below were justified in dismissing the application. It was also submitted that petitioner was not serious in prosecuting the petitions and even appeals were filed after inordinate delay and the conduct of the petitioner shows that attempt is only to protract the trial of the suits, and in such circumstances, as there is no illegality or irregularity or jurisdictional error in the impugned orders, the revision petitions are to be dismissed. 8. The fact that petitioner was earlier remained absent and an ex parte decree was passed or suit was dismissed for default, are not relevant facts, when the suits were subsequently restored after setting aside the ex parte decree, by the court on satisfying sufficient grounds for the absence. Hence, it is not a ground to dismiss subsequent applications filed under Rule 13 of Order IX or Rule 9 of Order IX of Code of Civil Procedure. The question to be decided is when the petitioner remained absent on 5.2.2007 and the CRP.Nos.199 & 207 of 2008 5 ex parte decree was passed on 9.2.2007, was there any sufficient cause for his absence, and if so, whether ex parte decree is to be set aside and suit is to be restored granting opportunity to the petitioner. 9. There is force in the submission of the learned counsel appearing for the respondent that petitioner was not diligent enough in prosecuting his suit or defending the suit instituted by the respondent. That could only be the reason why the petitioner did not adduce evidence in support of his contentions in the applications. In the petition, the reason alleged for the absence was that he was being treated as an inpatient in the hospital. Though the doctor who issued the certificate was not examined, medical certificate was produced. It shows that petitioner was being treated as an inpatient from 3.2.2007 to 8.2.2007. In such circumstances, it cannot be said that there is no sufficient cause for the absence of the petitioner on 5.2.2007. Viewed from that angle courts below should have taken a lenient view and should have granted an opportunity to the petitioner to have a decision on merits, but on terms. It is more so because the petitions to set aside the decree and to restore the other suit were filed within the period of limitation. CRP.Nos.199 & 207 of 2008 6 10. In such circumstances, the revision petitions are allowed on terms. I.A.No.440 of 2005 and I.A.No.441 of 2005 will stand allowed on the petitioner paying or depositing a cost of Rs.2000/= to the respondent within two weeks from today, failing which dismissal of the petitions as confirmed in C.M.A.Nos. 12 and 13 of 2007 will stand and the revisions will stand dismissed. If the cost is paid, ex parte decree in O.S.No.18 of 2005 will stand set aside and O.S.No.36 of 2005 will stand restored. In that event, petitioner shall get ready for the trial of the suit and shall not seek any adjournment. If the ex parte decree in O.S.No.18 of 2005 is set aside and O.S.No.36 of 2005 is restored, learned Munsiff to dispose both the suits within four months from the date of restoration. Post on 13.8.2008 for reporting compliance. M.SASIDHARAN NAMBIAR, JUDGE nj.