IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 14TH SEPTEMBER 2009 / 23RD BHADRA 1931 WP(C).No. 20986 of 2009(O) -------------------------- CMA.64/2008 of D.C. & SESSIONS COURT,KOLLAM OS.500/2005 of MUNSIFF COURT, KARUNAGAPPALLY .................... PETITIONER(S): ------------------------ KENNADY, S/O.HENRY, KUNNATHU KADAVIL HOUSE, ARINALLOOR, PERUNGOLAM MURI, MUNROETHURUTHU VILLAGE, KOLLAM. BY ADVS. MR.V.V.RAJA, MR.R.RANJITH. RESPONDENT(S): ---------------------------- GEETHA TITUS, D/O.CIRILAMMA, KUNNATHUKADAVIL, ARINALLOOR MURI, THEVALAKKARA VILLAGE. BY ADV. MR.VINOY VARGHESE KALLUMOOTTILL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/09/2009 ALONG WITH WPC NO. 21018 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.20986/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.NO.500 OF 2005 ON THE FILE OF MUNSIFF COURT, KARUNAGAPPALLY DTD.21/10/05. P2: COPY OF THE PLAINT IN O.S.NO.140 OF 2004 ON THE FILE OF MUNSIFF COURT, KARUNAGAPPALLY DTD.11/03/2004. P3: COPY OF THE COMMON JUDGMENT DTD. 31/07/07 IN O.S.NO.500 OF 2005 AND O.S.NO.140 OF 2004 OF THE MUNSIFF COURT, KARUNAGAPPALLY. P4: COPY OF THE COMMON ORDER DTD. 10/06/2008 IN I.A.18/09 AND I.A.19/09 IN O.S.NO.500 OF 2005 ON THE FILE OF THE MUNSIFF COURT, KARUNAGAPPALLY. P5: COPY OF THE COMMON JUDGMENT DTD. 30/06/2009 IN CMA NO.64 OF 2008 ON THE FILE OF THE DISTRICT JUDGE, KOLLAM. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).Nos.20986 AND 21018 OF 2009 -------------------------- Dated this the 14th day of September 2009 ------------------------------------- JUDGMENT These writ petitions are filed against the common judgment in two C.M Applications, C.M.A No.64 of 2008 and C.M.A No.65 of 2008 by the learned District Judge, Kollam. Petitioner is the common appellant in both the appeals, and the respondent, the common respondent. The above appeals arose from the applications moved by the petitioner for setting aside the dismissal of his suit O.S No.140 of 2004 on the file of the Munsiff Court, Karunagappally for default and against the exparte decree passed in a connected suit, O.S No.500 of 2005 before the same court instituted by the respondent. O.S No.140 of 2004 was filed by the present petitioner for realising the sum W.P.(C).Nos.20986 Page numbers AND 21018 OF 2009 allegedly paid by him towards the discharge of the liability outstanding on a bank over a property which is stated to have been conveyed to him by the respondent under a sale deed. The other suit O.S No. 500 of 2005 was filed by the respondent contending that the sale deed by which the petitioner claimed title over the property was a sham document which had been obtained by fraud while advancing a loan. Both the suits O.S No.140 of 2004 and O.S No.500 of 2005 came up for trial on 26/07/2007. On that day petitioner was absent, with the result his suit O.S No. 140 of 2004 was dismissed and in the other suit filed by the respondent, an exparte decree was passed against him. Petitioner thereafter moved applications with petitions to condone delay of 153 days for restoring his suit O.S No.140 of 2004 dismissed for default and for setting aside the exparte decree passed in O.S No.500 of 2005. Subsequently he W.P.(C).Nos.20986 Page numbers AND 21018 OF 2009 produced a medical certificate to substantiate the cause for his absence and also to condone the delay in moving the applications. Petitioner was also examined in the enquiry on the above applications. No counter evidence was adduced by the respondent. The learned Munsiff after considering the materials produced, and hearing both sides was not satisfied with the cause shown for the absence of the petitioner on the hearing date of the suits and consequently both his applications filed in the respective suits were dismissed. Aggrieved by such orders, petitioner preferred C.M A No. 64 of 2008 against the order passed by the learned Munsiff dismissing his application to set aside the exparte decree passed in O.S No.500 of 2005 and C.M.A No.65 of 2008 against the order declining to restore the suit O.S No.140 of 2004 dismissed for default. Learned District Judge after hearing both sides dismissed both the C.M Applications by a common W.P.(C).Nos.20986 Page numbers AND 21018 OF 2009 judgment. Propriety and correctness of the above judgment is challenged in the writ petitions invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the learned counsel on both sides. In the oral evidence of the petitioner when he was examined in the enquiry on the applications moved for restoring his suit, and also for setting aside the exparte decree passed against him in the connected suit, it is submitted by the learned counsel that there was some discrepancy as regards his illness with reference to the medical certificate produced. He also did not afford proper explanation for his absence on the previous date of hearing of the suits ie, on 09/07/2007. Though the cases posted on that date, on the request of the respondent, were adjourned to a W.P.(C).Nos.20986 Page numbers AND 21018 OF 2009 future date for joint trial ie, on 26/07/2007. Both the suits were disposed by the court by Ext.P3 judgment on 31/07/2007. Petitioner could not appear before the court on the hearing date because of his illness and as he was an illiterate person he could not properly explain his absence, is the submission of the counsel. On the other hand, the learned counsel for the respondents submitted that the medical certificate was produced long after filing of the petition and the evidence tendered by the petitioner in the enquiry prima facie disclosed that the cause pleaded for his absence is not correct. The dismissal of his applications in such circumstances by the trial court holding that he has not made out sufficient cause which resulted in passing of orders dismissing his suit and also an exparte decree against him in the connected suit, according to the counsel, doed not warrant any interference. W.P.(C).Nos.20986 Page numbers AND 21018 OF 2009 3. Perusing the orders passed by the learned Munsiff and also the common judgment rendered by the learned District Judge, I find some force in the submissions made by the learned counsel for the respondents that the petitioner has not properly explained nor showed sufficient cause for his absence on the hearing of the suits. However to find fault with the petitioner for providing a nonexplanation on the previous date for hearing on 09/07/2007, the date on which the case was listed for trial, but, adjourned to a later date to examine the merit of his applications appears to be not correct. He need only show sufficient cause for his absence on the hearing date of the suit when exparte orders were passed against him. It is true that there is some discrepancy on his evidence with reference to the medical certificate produced. But in examining the question whether he has sufficient cause for W.P.(C).Nos.20986 Page numbers AND 21018 OF 2009 absence it is needless to point out the court has to examine whether there was culpable neglect or wilful default on the part of the petitioner for his absence. Sufficient cause is an elastic expression and normally when evidence is given to explain sufficient cause, concrete and convincing material by documentary evidence may be lacking. But in examining whether the cause shown is correct the conduct of the party as to whether there was wilful default or culpable latches has to be looked into. There is nothing on record to show that the absence of the petitioner was wilful and deliberate and with intend to delay the proceedings. True that he has not explained by convincing evidence the cause for his absence. The medical evidence tendered was also not fully in tune with the cause shown by him. However when there is no counter evidence on the part of the respondents, the sworn testimony of the petitioner that it was on account W.P.(C).Nos.20986 Page numbers AND 21018 OF 2009 of his illness he could not appear before the court should not have been rejected. So much so, I find that the applications moved by the petitioner for restoring his suit and also for setting aside the exparte decree passed in the connected suit require to be considered favorably. However the time delay which had occurred after disposal of the two suits and the injuries that is likely to be caused to the respondents in restoring the suits for trial also has to be taken into account. So much so, a fresh trial after restoration of the suits on file of the court setting aside the order dismissing O.S No.140 of 2004 for default and the exparte decree passed in O.S No.500 of 2005, the connected suit filed by the respondents is allowable only on terms. Compensating the injury likely to be suffered by the respondents, petitioner shall pay a sum of Rs.3,000/- each in the two suits as a condition precedent for allowing his applications moved in W.P.(C).Nos.20986 Page numbers AND 21018 OF 2009 the respective suits. Cost ordered as above shall be paid to the counsel appearing for the respondents before this court within 15 days from the date of this judgment and a memo filed on or before 05/10/2009. If cost is not paid as directed above, both the writ petitions shall stand dismissed without any further orders. Post for report on 06/10/2009. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv