IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 OP(C).NO. 3883 OF 2011(O) ------------------------------------- OS.377/2002 OF II ADDL.M.C., ERNAKULAM .................... PETITIONER: -------------------- MOHANAN, S/O. GOVINDAN, AGED 54 YEARS, RESIDING AT "ANUGRAHA", NADAL VAYANSALA, KIZHUNA P.O., KANNUR-7. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY SRI.RAJESH V.NAIR RESPONDENT: --------------------- E.S.JOSE, PROPRIETOR, A2Z INTERNATIONAL TRADING & MARKETING, P.T.USHA ROAD, KOCHI-11. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.3883 OF 2011 APPENDIX PETITIONER(S)' EXHIBITS: EXT.P1: A TRUE COPY OF THE PLAINT IN O.S.377/02 FILED BEFORE THE ADDL.MUNSIFF,ERNAKULAM. EXT.P2: A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT IN O.S.377/02. EXT.P3: PHOTOCOPY OF ORDER PASSED IN I.A.7471 IN O.S.377/02 BY THE II ADDL.MUNSIFF,ERNAKULAM DATED 06.02.2009. EXT.P4: PHOTOCOPY OF THE E.P.23/10 FILED BY THE RESPONDENT BEFORE THE SUB COURT,MAHE. EXT.P5: COPY OF ORDER PASSED BY THE HE SECOND ADDITIONAL MUNSIFF, ERNAKULAM IN I.A.2526/11 & 2527/11 IN OS.377/2002 DATED 10.08.2011. RESPONDENT(S)' EXHIBITS: NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3883 of 2011 ==================================== Dated this the 29th day of November, 2011 J U D G M E N T Defendant in O.S. No.377 of 2002 of the court of learned Additional Munsiff-II, Ernakulam is the petitioner before me challenging Ext.P5, order dismissing I.A. Nos.2526 and 2527 of 2011. 2. Respondent filed the suit for recovery of Rs.36,271/- being the price of goods allegedly sold to the petitioner. The suit was filed in the year, 2002. Petitioner filed written statement contending that he had purchased goods for Rs.12,336/- and Rs.6,531/- and cheques were issued as security. When the case was posted for trial in the list, there was no appearance for petitioner and the suit was decreed ex parte on 29.06.2004 based on the evidence given by the respondent. That was followed by petitioner filing I.A. Nos.7470 and 7471 of 2006 (after two years of the judgment and decree) requesting to set aside the ex parte decree and to condone the delay of 784 days. Those applications were dismissed after three years on 06.02.2009 for default. After O.P(C) No.3383 of 2011 -: 2 :- 797 days petitioner filed I.A. Nos.2526 and 2527 of 2011 to restore I.A. No.7470 and 7471 of 2006 and to condone the delay of 797 days. Those applications were dismissed by the learned Munsiff as per Ext.P5, order holding that no sufficient cause to condone the delay is made out. Learned Munsiff was not inclined to accept the version of petitioner that since the counsel did not give intimation petitioner was not aware of dismissal of I.A. Nos.7470 and 7471 of 2006. 3. Learned counsel for petitioner contends that merely because of some laches on the part of counsel, the party should not suffer and placed reliance on the decision in Improvement Trust v. Ujagar Singh ([2010] 6 SCC 786). In the said decision it is held that in the matter of condonation of delay, facts and circumstances of the case has to be looked into and that hyper technical approach has to be avoided. The conduct of party and not of the counsel is to be considered. In that case the newly appointed Advocate failed to appear on the listed day leading to a delay of more than 2 months. Having regard to the circumstances of the case it was held that delay could be condoned. O.P(C) No.3383 of 2011 -: 3 :- 4. Every decision must apply to the facts of that case. In the present case after the ex parte decree was passed on 29.06.2004 petitioner came with I.A. Nos.7470 and 7471 of 2006 with a delay of 784 days contending that petitioner was not informed of the judgment and decree. I stated that those applications were dismissed for default on 06.09.2009. Petitioner who suffered an ex parte decree on 29.06.2004 allegedly for the reason that counsel did not intimate him about the case again suffered a dismissal of I.A. Nos.7470 and 7471 of 2005 on 06.02.2009 as nobody turned up. According to the petitioner, his counsel did not intimate him about the posting of the applications. If the ex parte decree happened to be there on account of counsel not intimating petitioner, necessarily he would have been more watchful of the applications he filed to set aside the ex parte decree and condone the delay. There also the counsel is accused of not intimating him about the development of the applications. These circumstances make it difficult for me to accept the version of petitioner. It is not as if litigants should have the impression that any laches on their part will be condoned by the superior courts at some point of time. If such a view is adopted it will only make the litigation endless. I also O.P(C) No.3383 of 2011 -: 4 :- referred to the nature of defence petitioner had taken in the suit. Having regard to the circumstances I do not find any reason to entertain the Original Petition in challenge of Ext.P5, order. Original Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv