IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 CRP.No.571 of 2008 (B) ---------------------------- OS.1025/2004 of PRL. SUB COURT,THRISSUR .................... PETITIONER IN CRP - RESPONDENT NO.1 IN I.A.s - PLAINTIFF IN SUIT ---------------------------------------------------------------------------- RAVUNNI @ CHANDRAN, S/O.VELUTHEDATH RAVUNNI NAIR, CHAKKOTH LINE, POONKUNNAM VILLAGE AND DESOM, THRISSUR. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENTS IN CRP - PETITIONERS & RESPONDENTNO.2 IN I.A.S - DEFENDANTS 1, 3 & 2 IN SUIT --------------------------------------------------------------------------------- 1. SARALA BHASKARAN, W/O.PAYYAPAT LATE BHASKARAN, THYKAD DESOM, GURUVAYUR AMSOM, CHAVAKKAD. 2. BINSU, D/O. DO. AND W/O.MULLANGATH GOPIDAS, FLAT NO.H, FIRST FLOOR, BLOCK NO.III, CAPITAL VILLAGE, POONKUNNAM VILLAGE, DESOM, THRISSUR TALUK. * 3. BASU, S/O.DO. RESIDING AT THYKAD DESOM, GURUVAYUR AMSOM, CHAVAKKAD, NOW AT P.O.BOX NO.22009, SHARJAH, U.A.E. *[R3 IS DELETED FROM THE PARTY ARRAY VIDE ORDER DT.10/11/08 IN I.A.2487/08] ADV. SRI.G.SREEKUMAR (CHELUR) FOR R1 & 2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/12/2008, ALONG WITH CRP NO.709 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ C. R. P. Nos.571 & 709 of 2008 ------------------------------------------------ Dated this the 3rd day of December, 2008 ORDER The revision petitioner and the respondents in both these revisions are the same. Revision petitioner is the plaintiff in O.S.1025/04 on the file of the Sub Court, Thrissur. The Respondents are respectively defendants 1, 3 and 2 in the said suit. The suit was decreed ex parte by the court below as respondents 1 to 3 who entered appearance in the court below through Advocate Sri.C.B.Pradeep did not file any written statement or contest the suit. The decree was passed ex parte on 30/09/05. Respondents 1 and 2 filed I.A.2084/08 in the said suit under Order IX Rule 13 to set aside the ex parte decree and judgment and I.A.2083/08 seeking condonation of delay of 844 days in filing I.A.2084/08. Both the petitions were allowed C. R. P. Nos.571 & 709 of 2008 -2- by the court below vide orders challenged in C.R.P.571/08. Pursuant to the ex parte decree in the suit, the petitioner/plaintiff who was the decree holder filed I.A.3996/06 to have sale deed executed in compliance with the decree passed in O.S.1025/04 for specific performance of the contract to sell the scheduled property. It is submitted that the said I.A. was allowed by the court below and sale deed was got executed through court by the petitioner on 12/03/08. Respondents 1 and 2 filed I.A.2081/08 in I.A.3996/06 in the said suit to set aside the ex parte order passed on I.A.3996/06 and also filed I.A.2085/08 under Section 5 of the Limitation Act to condone the delay in filing I.A.2081/08. The orders on I.As.2081 and 2085 of 2008 are assailed by the petitioner/decree holder in C.R.P.709/08. C. R. P. Nos.571 & 709 of 2008 -3- 2. Before proceeding to consider the case of the petitioner in C.R.P.571/08, I am to observe that the orders assailed in C.R.P. 709/08 are not speaking orders and the order is only “I.A. allowed”. Probably it could be because the Sub Judge who has allowed the petitions under Order IX Rule 13 and the delay condonation application filed therewith vide I.A.2083 and 2084 of 2008 would have thought that in view of the said order no speaking order is required to be made on I.A.2081 and 2085 of 2008. Such a view also cannot be faulted for the reason that when the ex parte decree is set aside, obviously the subsequent order passed on I.A.3996/06 to have the decree complied with also will have to be set aside. Consequently, it follows that the decision in C.R.P.709/08 shall depend upon the order that is to be passed in C.R.P.571/08. C. R. P. Nos.571 & 709 of 2008 -4- 3. The orders assailed in C.R.P.571/08 were passed by the court below considering the evidence adduced which consisted of only documentary evidence Exts.B1 to B7 in I.A. 2084/08 and Exts.B1 to B3 in I.A.2083/08. Exts.B1 to B3 marked in I.A.2083/08 are the same as Exts.B1 to B3 marked in I.A.2084/08. The counsel for the petitioner has produced before me for perusal true photostat copies of Exts.B1 and B3. Ext.B3 shows that the summons issued to the defendants in O.S.1025/04 was being served in the address given in the plaint directly to the second defendant who is the third respondent herein who accepted also the summons on behalf of defendants 1 and 3 who are respondents 1 and 2 herein stating that they had then gone out and the Process Server was serving summons of defendants 1 and 3 on the second defendant being convinced that C. R. P. Nos.571 & 709 of 2008 -5- defendants 1 and 3 are residing in the same house and that D2 is residing with them in that house. The service of summons is in order and its correctness cannot be challenged. Pursuant thereto all defendants 1 to 3 have entered appearance in the suit on 22/03/08 filing Ext.B1 vakalath through Advocate Sri.C.B.Pradeep, a lawyer of Thrissur bar. The counsel for the respondents does not assail the fact of defendants having entered appearance in the suit filing vakalath of Advocate Sri.C.B.Pradeep. Consequently, therefore, the case is one where summons has been duly served and the respondents were having knowledge of the suit and they entered appearance, but did not care to file any written statement and the suit happened to be decreed ex parte. C. R. P. Nos.571 & 709 of 2008 -6- 4. The question therefore, is whether there is any sufficient cause to enable the decree passed ex parte on 30/09/05 being set aside on an application made vide I.A.2084/05 on 04/03/08 condoning the delay of as much as 844 days sought for to be got condoned filing I.A.2083/08. 5. It is worthy to note in this context that the petitioners have not entered the witness box and have not tendered any evidence to substantiate any ground to set aside the ex parte decree. To substantiate the case of the petitioner/plaintiff that the suit agreement on the basis of which a decree was granted to him is genuine, he produced Ext.B4 prior title deed of the suit property which was handed over to him while executing the suit agreement for sale of the scheduled property. He also produced Ext.B5 sale deed executed in his C. R. P. Nos.571 & 709 of 2008 -7- favour through court pursuant to the decree for specific performance in O.S.1025/04 aforesaid. From the order, I see that the court has allowed the application to set aside the ex parte decree observing that according to the petitioners (defendants 1 & 3) they have never accepted the summons from the court and their address shown in the plaint is incorrect and the respondent (plaintiff) also has no case that the summons were properly served to the petitioners in person and consequently, petitioners have sufficient cause for their absence. The said approach made by the court is perverse and deserves to be reversed for the reason that the service as evidenced from Ext.B3 report of the Process Server is sufficient service and further that cannot be assailed in view of all defendants 1 to 3 entering appearance in the suit engaging C. R. P. Nos.571 & 709 of 2008 -8- lawyer who has filed Ext.B1 vakalath on 23/02/05. The delay of as much as 844 days also is condoned casually by the Sub Judge recording the submissions of the counsel that the defendants 1 to 3 who filed petition under Order IX Rule 13 have no knowledge regarding the summons and that the words “sufficient cause” should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. Though the Sub Judge has extracted the broad principles which are to be followed, he has not considered the question as to whether there was negligence or inaction or want of bona fides on the part of respondents 1 and 2 in the matter of conduct of their defence in the suit after entering appearance through a lawyer. They did not file any written statement nor did they do anything C. R. P. Nos.571 & 709 of 2008 -9- for the progress of the suit. They did not make any enquiry to their lawyer regarding their case. They gave scant regard to the matter and did not enquire as to whether a decree is passed at all. The nature of the petitioners in those I.As who are defendants 1 and 3 show that they were callous in the matter of conduct of defence in the case and the court below has not seen any justifiable reason to be accepted as sufficient cause to condone the delay of 844 days in filing petition under Order IX Rule 13 so as to upset the decree that has been passed in favour of the petitioner/plaintiff as early as on 30/09/05 pursuant to which Ext.B5 sale deed also was executed in their favour by the court. It is strange that the learned Sub Judge has set aside the decree in a casual manner condoning the delay of 844 days without C. R. P. Nos.571 & 709 of 2008 -10- even having the petitioners in the said I.A who are respondents 1 and 2 tendering any evidence also in support of their case advanced in I.A. Nos.2083 and 2084 of 2008 that they were not aware of the decree in the suit and they had not been served with summons when the fact remains that all the defendants in the suit entered appearance through Advocate Sri.C.B.Pradeep who filed Ext.B1 vakalath in the suit on 23/02/08. The orders on the above two I.As.2083 and 2084 of 2008 assailed in C.R.P.571/08 deserve therefore, to be set aside in the circumstances allowing C.R.P.571/08 and consequently, the orders on I.A. Nos.2081 and 2085 of 2008 which are nonspeaking orders assailed in C.R.P.709/08 also deserve to be set aside allowing C.R.P.709/08. C. R. P. Nos.571 & 709 of 2008 -11- 6. In the result, I set aside the orders impugned in both these revisions and dismiss I.As.2083 and 2084 of 2008 as also I.As.2081 and 2085 of 2008 filed by respondents 1 and 2 in O.S.1025/04 of Sub Court, Thrissur. C.R.P Nos.571/08 and 709/08 are thus, allowed. K.P.BALACHANDRAN, JUDGE kns/-