IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 13TH JULY 2011 / 22ND ASHADHA 1933 OP(C).No. 1164 of 2010(O) ------------------------- AGAINST THE ORDER IN IA.930,932,934,935/10 IN OS.224/1995 of ADDL.MUNSIFF COURT,KOCHI .................... PETITIONERS: ------------------------- 1. SANKARANARAYANAN, S/O.KOCHAYAPPAN, AGED 55, KALATHIPARAMBIL HOUSE, NARAKKAL MURI, NARAKKAL VILLAGE,KOCHI TALUK. 2. UNNIKRISHNAN, AGED 28, S/O.SANKARANARAYANAN, KALATHIPARAMBIL HOUSE, NARAKKAL MURI, NARAKKAL VILLAGE,KOCHI TALUK. 3. AJITHKUMAR, AGED 25, S/O.SANKARANARAYANAN, KALATHIPARAMBIL HOUSE, NARAKKAL MURI, NARAKKAL VILLAGE,KOCHI TALUK. 4. SUJITH KUMAR, AGED 22, S/O.SANKARANARAYANAN, KALATHIPARAMBIL HOUSE, NARAKKAL MURI, NARAKKAL VILLAGE, KOCHI TALUK. 5. BHAVANI, AGED 48, W/O.SANKARANARAYANAN, KALATHIPARAMBIL HOUSE, NARAKKAL MURI, NARAKKAL VILLAGE, KOCHI TALUK. BY ADVS. SRI.S.SREEKUMAR, SRI.P.MARTIN JOSE, SRI.P.PRIJITH, SMT.HANI P.NAIR. RESPONDENT(S): ---------------------------- 1. RADHAKRISHNAN, S/O.LATE KUMARAN, AGED 32, KUNHUVEETTIL HOUSE, NARAKKAL MURI, NARAKKAL VILLAGE, KOCHI TALUK, PIN-682 505. 2. MADHAVAN, AGED 45, S/O.VALLON, NIKATHIL HOUSE, NARAKKAL MURI, NARAKKAL VILLAGE, KOCHI TALUK, PIN - 682 505. R1 & R2 BY ADV. SRI.SAJAN MANNALI THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.1164/2010 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF I.A.NO.934/2010 IN O.S.NO.224/1994. P2: COPY OF I.A.NO.935/2010 IN O.S.NO.224/1994. P3: COPY OF I.A.NO.930/2010 IN O.S.NO.224/1995. P4: COPY OF I.A.NO.932/2010 IN O.S.NO.224/1994. P5: COPY OF THE COUNTER AFFIDAVIT IN I.A.NO.934/2010. P6: COPY OF THE COUNTER AFFIDAVIT IN I.A.NO.935/2010. P7: COPY OF THE COUNTER AFFIDAVIT IN I.A.NO.930/2010. P8: COPY OF THE COUNTER AFFIDAVIT IN I.A.NO.932/2010. P9: COPY OF COMMON ORDER DTD. 6/11/2010 IN I.A.NOS.930/2010, 932/2010, 934/2010 AND 935/2010 IN I.A.NO.1939/06 AND I.A.NO.1940/06 IN O.S.NO.224/95 OF ADDL.MUNSIFF'S COURT, KOCHI. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.1164 of 2010 --------------------------------------- Dated this 13th day of July, 2011 JUDGMENT Defendants in O.S.No.224 of 1995 of the Court of learned Additional Munsiff, Kochi are the petitioners challenging Ext.P9, order dated November 06, 2010 on I.A.Nos.930, 932, 934 and 935 of 2010. First respondent/plaintiff filed the suit for a decree for prohibitory and mandatory injunction. That suit was dismissed for default on 19.11.1998 and restored to file on 22.11.2000. Again there was a dismissal for default on 25.02.2006 and there was an application for restoration with a petition to condone the delay which was dismissed on 06.01.2007 for default. Thereafter came I.A.Nos.930, 932, 934 and 935 of 2010 for restoration of the suit, condonation of delay and other reliefs. There was a delay of 1135 days in filing the said application. According to the first respondent he was under the impression that the case is on file and only later he learned that it was dismissed for default and hence the delay. The request was stoutly opposed by petitioner and other contesting defendants. Evidence was recorded on the said applications. Learned Munsiff in Ext.P9, order observed that first respondent has failed to explain the minute details of delay O.P(C).No.1164 of 2010 -: 2 :- in filing the applications and that though, explanation for delay stated by the first respondent is not sufficient, ends of justice required that applications are to be allowed and accordingly directing first respondent to pay cost of Rs.500/- each to the petitioner and other defendants, the same were allowed. Learned counsel for petitioners has contended that finding of the learned Munsiff that the explanation offered by the first respondent for delay is not sufficient should have been followed by a dismissal of the applications since according to learned counsel the discretionary jurisdiction of the Court to condone the delay would arise only when the party has shown sufficient cause for the delay to the satisfaction of the Court. Reliance is placed on the decision in Balwant Singh Vs. Jagdish Singh and Ors. ((2010)8 SCC 685). Learned counsel for first respondent submitted that the first respondent was under the impression that case was on file as he was being represented by counsel. It happened that on both the occasions the suit was dismissed, counsel was absent and consequently first respondent had to file a complaint against the counsel. It is also the case of learned counsel that the counsel then explained that the file was missing and these circumstances resulted in the delay. O.P(C).No.1164 of 2010 -: 3 :- 2. I am inclined to agree with learned counsel for petitioners on the point of law – that in the absence of satisfaction that delay is properly explained the question of exercise of discretionary power does not arise. The Supreme Court in Ramlal and Ors. Vs. Rowa Coal Field Ltd (AIR 1962 SC 361) has held that proof of sufficient cause is a condition precedent for the exercise of discretionary jurisdiction vested in Court by Sec.5 of the Limitation Act and that question of exercise of the discretionary jurisdiction arises only when such sufficient cause is shown. That is because even when sufficient cause is shown the party is not entitled as of right to have the delay condoned. Same view was taken in the decision cited by learned counsel for petitioners. Hence if the learned Munsiff was satisfied that there was no sufficient explanation for the delay, the question of exercising discretionary jurisdiction did not arise. 3. But, circumstances stated by the learned counsel for first respondent for causing the delay requires fresh consideration. I referred to the explanation offered by the first respondent as submitted by learned counsel. These circumstances has to be considered by learned Munsiff and arrive at the conclusion whether explanation offered by the first O.P(C).No.1164 of 2010 -: 4 :- respondent is sufficient or not. The question of exercise of discretionary jurisdiction should follow the finding whether explanation offered by the first respondent is sufficient. In the circumstance, I am inclined to remit the matter to the learned Munsiff for fresh disposal after giving both sides opportunity ot adduce further evidence, if any. Resultantly this original petition is allowed. Ext.P9, order is set aside and applications referred therein are remitted to the Court of learned Munsiff, Kochi for fresh decision having regard to the position of law as laid down in the decisions referred supra and after giving the parties opportunity to adduce further evidence. (THOMAS P JOSEPH, JUDGE) Sbna/-