IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 WP(C).No. 26036 of 2009(O) ------------------------------------- CMA.121/2007 of ADDL. DISTRICT COURT, THALASSERY OS.256/2001 of PRL.S.C.,THALASSERY .................... PETITIONER(S): RESPONDENTS 1 TO 4 -------------------------- 1. KELOTH ABDUL KHADER, S/O. ANDRU, AGED 51 YEARS, BUSINESS, NAZEEMA MANZIL, P.O.MAYYIL, KANNUR DISTRICT. 2. CHOOLOT PUTHIYA PURAYIL ABDUL SHUKOOR HAJI, S/O.MOOSA, AGED 43 YEARS, BUSINESS, RESIDING AT MAYYIL, KANNUR DISTRICT 3. KOYAMBRATH PUTHIYA PURAYIL HAZEENA, D/O.KAMAL HAJI,NO.OCCUPATION,RESIDING AT KAYARALAM AMSOM,MAYYIL DESOM,KANNUR DISTRICT,(PETITIONERS 1 TO 3 PRESENTLY RESIDING AT BIDAYA, MUSCAT AND THEREFORE REP.BY P/A HOLDER KELOTH KAMAL HAJI, BUSINESS, NAZEEMA MANZIL,MAYYIL,KANNUR) 4. CHIRAMMAL PUTHIYA PURAYIL MOOSANKUTTY, S/O.MAMMAD KUNHI, AGED 26,KAYARALAM AMSOM, PERUVANGOOR DESOM,P.O.KAYARALAM. BY ADV. MR.V.RAMKUMAR NAMBIAR RESPONDENT(S): APPELLANT & 5TH RESPONDENT/ PETITIONER & 5TH -------------------------- RESPONDENT 1. CHIRAMAL PUTHIYA PURAYIL ABDUL RAZACK, S/O.MAMMAD KUNHI, AGED 41 YEARS,BUSINESS, RESIDING AT KAYARALAM AMSOM,ERUVAPUZHA DESOM,P.O.MAYYIL,KANNUR DISTRICT. 2. CHIRAMAL PUTHIYA PURAYIL ABDUL RASHEED, S/O. MUHAMMAD KUNHI,AGED 38 YEARS, BUSINESS, RESIDING AT KAYARALAM AMSOM, PERUVANGOOR DESOM, TALIPARAMBA, P.O.KAYARALAM. R2 BY ADV. MR.C.X.ANTONY BENEDICT THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/10/2009, ALONG WITH WPC NO. 26117 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.26036/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE JUDGMENT OF THE PRINCIPAL SUBORDINATE COURT, THALASSERY IN OS. 256/01 DTD. 12.9.06. P2:- COPY OF THE AFFIDAVIT FILED BY THE IST RESPONDENT IN SUPPORT OF THE PETITION TO SET ASIDE THE EXPARTE DECREE AS IA NO.2597./2006 IN OS. NO.256/01 OF THE PRINCIPAL SUBORDINATE COURT, THALASSERY. P3:- COPY OF THE COMMON ORDER IN IA. NO.2597/2006 IN OS. NO.256/2001 OF THE PRINCIPAL SUBORDINATE COURT, THALASSERY DTD. 13.6.07. P4:- COPY OF THE COMMON JUDGMENT IN CMA,. 121/07 IN IA. 2597/06 IN OS. 256/01 OF THE ADDL. DISTRICT COURT, THALASSERY DTD. 13.7.09. P5:- COPY OF THE AFFIDAVIT AND PETITION IN IA. NO.2476/02 IN OS. 256/01 BEFORE THE ADDL. SUBORDINATE COURT, THALASSERY (THEN) P6:- COPY OF THE AFFIDAVIT AND PETITION IN IA. 419/08 IN CMA. 121/07 BEFORE THE ADDL. DISTRICT COURT, THALASSERY. P7:- COPY OF THE REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER ON FINAL DECREE IA. NO. 2284/2008 IN OS. NO.256/01. TRUE COPY P.A. TO JUDGE tss S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NOS.26036 & 26117 OF 2009 () ----------------------------------- Dated this the 16th day of October, 2009 J U D G M E N T These two writ petitions arise from the common judgment passed in C.M.A.No.121 of 2007 and C.M.A.No.125 of 2007 of the Additional District Court, Thalassery. Petitioners in the writ petition are the defendants 1 to 3 and 5 in O.S.No.197 of 2007 on the file of the Principal Sub Court, Thalassery. Suit was one for a decree of preemption filed by the 1st respondent as plaintiff. The 2nd respondent in the writ petitions is the 4th defendant in that suit. These petitioners along with the 4th defendant as plaintiffs have filed another suit as O.S.No.256 of 2001 for partition in which the sole defendant was the 1st respondent. Both the suits were ordered to be jointly tried. A claim of preemption was made by the 1st respondent in respect of some of the items covered by the suit for partition. When the cases came up in the special list for trial, the 1st respondent/plaintiff in O.S.No.197 of 2001 was WPC.26036/09&26117/09 2 absent, and so much so, his suit was dismissed. A preliminary decree for partition was passed in O.S.No.256 of 2001 in favour of the petitioners and the 2nd respondent, co-plaintiff in that suit. The 1st respondent moved two applications, one for restoration of his suit O.S.No.197 of 2001 dismissed for default and the other for setting aside the preliminary decree passed in O.S.No.256 of 2001. Both the applications were objected to by these petitioners and the 2nd respondent by filing objections. The learned Sub Judge after conducting enquiry over both the applications together, in which the 1st respondent was examined as PW1 and a medical certificate produced by him exhibited as Ext.A1, and hearing the counsel on both sides, dismissed the applications by a common order dated 13.6.2007 holding that the 1st respondent has not made out sufficient cause for restoring his suit dismissed for default and also for setting aside the decree passed in the other suit for partition. The 1st respondent preferred two appeals challenging the orders of the learned Sub Judge. The appeals WPC.26036/09&26117/09 3 numbered as C.M.A.No.121 of 2007 and C.M.A.No.125 of 2007, after being heard together, were disposed by Ext.P6 common judgment by the learned District Judge, Thalassery. The appeals were allowed reversing Ext.P5 order passed by the learned Sub Judge. Propriety and correctness of Ext.P6 judgment is challenged in both these writ petitions invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the learned counsel for the petitioners. Though the 1st respondent has entered appearance, none appeared at the time of hearing to advance any arguments on the merits of the petition. The learned counsel for the petitioners submitted that the learned District Judge interfered with Ext.P5 order passed by the learned Sub Judge solely on the basis of some decisions and not appreciating the facts and circumstances involved and materials produced on the applications moved by the 1st respondent for restoration of WPC.26036/09&26117/09 4 his suit, dismissed for default, and also for setting aside the ex parte preliminary decree passed against him, in the suit for partition. It is submitted by the counsel both suits jointly tried came up in the list for trial earlier in 2004, but, was removed from the list on the application of the 1st respondent. Later, when it was again listed for trial in 2005, then also on the application of the 1st respondent, it was removed from the list. Suit came up in the list on 12.9.2006 for the third time, and on that occasion also, the 1st respondent remained absent, according to the counsel, with the sole object of prolonging and protracting the litigation. The learned Sub Judge, after taking note of the circumstances involved, found that the 1st respondent has not made out sufficient cause for allowing both the applications moved by him. The exercise of jurisdictional discretion by the learned Sub Judge in forming a decision as indicated by Ext.P5 order in the absence of sufficient, cogent and convincing reasons is not liable to be interfered by the appellate court, is the further WPC.26036/09&26117/09 5 submission of the counsel. 3. Perusing Ext.P5 order of the learned Sub Judge and Ext.P6 judgment of the learned District Judge, I find considerable force in the submissions made by the counsel. The learned Sub Judge, after appreciating the materials produced in the enquiry and on the petitions moved by the 1st respondent was not satisfied with the genuineness of the medical certificate produced by the 1st respondent, which was challenged by the present petitioners contending that the reason stated as to his absence was not true. The learned Sub Judge has also come to the conclusion that there is no satisfactory explanation as to why the 1st respondent has not informed his counsel of his illness for his nonappearance before the court when the cases were posted for recording evidence in the special list. Needless to point out that the learned Sub Judge had the opportunity to watch the demeanour and deportment of the 1st respondent when he was WPC.26036/09&26117/09 6 examined as PW1 in the enquiry conducted on his applications. So much so, the conclusions formed by the learned Sub Judge with reference to the totality of the facts and circumstances presented in the case, are not liable to be interfered with unless there are cogent and convincing reasons to disturb such findings. Perusing Ext.P6 judgment rendered by the learned District Judge, it is seen, the conclusions formed by the learned Sub Judge are not differed or distinguished for any reason whatsoever by the learned District Judge, but, the decision rendered by the court below was interfered solely placing reliance on some decisions of the apex court that the expression 'sufficient cause' should receive liberal interpretation. True, sufficient cause is an elastic expression, but, that has to be appreciated with reference to the totality of the facts and circumstances and materials produced in the enquiry on the applications moved for restoring a suit dismissed for default or setting aside an ex parte decree. Where it is evident that there was deliberate WPC.26036/09&26117/09 7 and wilful default and culpable laches, and consistently the trial of the suit was delayed by the conduct of the applicant in the absence of justifiable cause to disturb the finding made by the trial Judge that the petitioner has not made out any cause leave alone sufficient cause, on the basis of judicial pronouncements alone with respect to liberal approach in interpreting sufficient cause, it is not proper and correct to unsettle such finding. Ext.P6 judgment in the given facts of the case cannot be sustained and it is liable to be set aside, and I do so. Ext.P5 order passed by the learned Sub Judge is restored and the writ petitions are disposed of accordingly. S.S.SATHEESACHANDRAN JUDGE prp