IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 CRP.No. 95 of 2010() -------------------- AGAINST THE ORDER DATED 18/09/2009 IN IA NO.676 & IA NO.677/2008 IN OS.252/2005 of MUNSIFF-MAGISTRATE COURT, SASTHAMCOTTA .................... REVN. PETITIONER(S): PETITIONER/RESPONDENT IN IA/PLAINTIFF IN SUIT ------------------------------------------------------------------ K.P.ANIL KUMAR, S/O.PARAMESWARAN PILLAI, AGED 39, KAVIL VEEDU, THURUTHIKKARA MURI, KUNNATHUR VILLAGE, SASTHAMCOTTA, KOLLAM DISTRICT. BY ADV. SRI.P.B.KRISHNAN SMT.GEETHA P.MENON RESPONDENT(S): PETITIONERS IN IA/DEFENDANTS IN SUIT --------------------------------------------------- 1. THE SECRETARY, KERALA KHADI AND VILLAGE INDUSTRIES BOARD, THIRUVANANTHAPURAM. 2. THE PROJECT OFFICER, KERALA KHADI AND VILLAGE INDUSTRIES BOARD, KOLLAM. 3. THE DISTRICT COLLECTOR, KOLLAM. ADV. SRI.K.P.HARISH,STANDING COUNSEL FOR KERALA KHADI BOARD FOR R1 & R2 GOVT. PLEADER SHRI P.R.JAYAKRISHNAN FOR R3 THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/07/2010, ALONG WITH CRP NO. 151 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- C.R.P.Nos.95 & 151 of 2010 -------------------------------------- Dated this the 28th day of July, 2010. ORDER These revisions concerned an exparte judgment and decree passed by the learned Munsiff-Magistrate, Sasthamcotta in O.S.No.252 of 2005. Petitioner, common in both the cases sued respondents, also common for a decree for prohibitory injunction against proceeding under the Revenue Recovery Act (for short, “the Act”) initiated and continued against him pursuant to Ext.A1, demand notice on the premise that he was the Treasurer of Sooranad Grama Vikasana Society which owed Rs.42 lakhs to the respondents and that amount is realisable from him. Respondents though admittedly were served with summons in the suit did not appear and contest the suit. It resulted in exparte judgment and decree on 22.09.2006. In the year, 2008 and 2009, respondents requested to set aside the exparte decree. Respondent No.3 in C.R.P.No.95 of 2010 filed I.A.Nos.676 and 677 of 2008 to set aside exparte decree and to condone the delay in filing that application showing in the cause title respondent Nos.1 and 2 also as petitioners. Respondent Nos.1 and 2/defendant Nos.1 and 2 filed I.A.Nos.387 of 2009 and 388 of 2009 for the same relief to the extent the exparte decree concerned them. Petitioner opposed those applications. Learned Munsiff-Magistrate thought that respondents must be given an opportunity to contest the case and accordingly allowed the applications which are under challenge in these revisions. C.R.P.No.95 of 2010 arises from the CRP Nos.95 & 151/2010 2 order on I.A.Nos.676 of 2008 and 677 of 2008 (in O.S.No.252 of 2005) and C.R.P.No.151 of 2010 arises from the order on I.A.Nos.387 of 2009 and 389 of 2009 in the same case. Learned counsel for petitioner contends that no justifiable reason has been stated in the applications either to condone the delay or set aside the exparte decree and that even going by the averments in the affidavits it was one year after respondents got information about the exparte decree that applications referred to above are filed. Learned counsel contends that learned Munsiff-Magistrate has not gone into the merit of the contention raised by petitioner and decided whether sufficient cause has been shown to enable the court exercise discretionary jurisdiction to condone the delay. Learned counsel for respondents supported orders passed by the court below. 2. Petitioner filed application to prosecute respondents alleging that they violated the decree (exparte) for injunction. He also filed application for stay of notice issued by the respondents (notwithstanding the decree). Application for prosecution was dismissed as infructuous observing that execution petition is preferred for the same relief and is pending. Petitioner challenged that order in this Court in W.P.(C) No.21563 of 2008 and the order was quashed. Executing court was directed to consider the application afresh but no order was passed. Petitioner again filed W.P.(C) No.558 of 2009 for a direction to the executing court to consider that application. At that stage, executing court reported that CRP Nos.95 & 151/2010 3 the application was dismissed as not pressed on 19.09.2008. Thereon this Court directed the executing court to dispose of the execution petition within six months. Ofcourse, petitioner has a contention that the statement that the application was dismissed as not pressed on 19.09.2008 is not correct in so far as there was no posting in the executing court on that day. Executing court observed that trial court lacked jurisdiction to pass a decree and disposed of the execution petition accordingly. Petitioner challenged that order in Writ Petition in this Court and the order was set aside. Before Writ Petition was disposed of respondents pointed out that they have already filed applications to set aside the exparte decree. It is thus that the application to set aside the exparte decree came before the learned Munsiff-Magistrate. 3. In the affidavit in support of the applications it is stated that respondents had engaged a counsel who had undertaken to inform them about proceedings in the suit as and when required but the counsel colluded with petitioner and defendant No.4 who is the mother of petitioner and caused an exparte decree to be passed. It is only when petitioner filed Writ Petition in this Court on 17.03.2008 that respondents learnt about the exparte decree. Project Officer of respondent Nos.1 and 2 gave evidence in that line as PW1. No contra evidence is adduced by the petitioner. It is with that evidence on record that executing court passed the impugned orders. CRP Nos.95 & 151/2010 4 4. So far as I.A.Nos.676 and 677 of 2008 in C.R.P.No.95 of 2010 is concerned it is seen that learned Munsiff-Magistrate has not passed a detailed order. Instead, it is observed in the the order condoning the delay that having heard both sides and considered the rival contentions and materials available learned Munsiff-Magistrate is inclined to give respondents an opportunity to contest the case. In the application to set aside the expart decree a similar order is passed. But so far as I.A.Nos.387 and 389 of 2009 in C.R.P.No.151 of 2010 are concerned, position is better in that learned Munsiff-Magistrate has referred to the rival contentions and stated that having gone through the evidence on record and considering the facts and circumstances including that the expart decree prevented respondents from realising more than Rs.42 lakhs from the society of which petitioner was the Treasurer, that amount was availed by the society as credit facility from respondent No.1 and considering the stake involved learned Munsiff was of the opinion that discretion has to be exercised in favour of respondents. 5. It is pointed out by learned counsel for petitioner that there is no sufficient explanation for the delay in that even according to the respondents they learnt about the exparte decree on 17.03.2008 but the applications are filed only after a year. I.A.Nos.676 and 677 of 2008 are filed in the year 2009 itself though respondent Nos.1 and 2 filed I.A.Nos.387 and 389 of 2009 only in the year 2009. Respondents have a case in what circumstances exparte decree CRP Nos.95 & 151/2010 5 happened to be passed. It is in the meantime that Writ Petitions were filed in this Court and parties were fighting the Writ Petitions. It is while so, respondents filed applications stated above. 6. Trial court has exercised the discretion in favour of granting an opportunity to the respondents to contest the case. The decree ofcourse only stated that respondents are prevented from realising the amount from petitioner until a decision is arrived at as to his role in the Sooranadu Grama Vikasana Society. But there appears to be some ambiguity as it is not stated which authority is to take that decision. As learned Munsiff-Magistrate observed, stake involved is high, more than Rs.42 lakhs. Question whether petitioner is entitled to the injunction prayed for is a matter which has to be decided on contest. A Division Bench of this Court has observed in Sebastian v. State Bank of Travancore (2006(2) KLT S.N. Case No.38) that a decision is to be on merit unless conduct of the party is contumacious and grounds pleaded are wholly insufficient or patently false. Respondents are a Government agency and its officials. The suit involves substantial public money. In the circumstances some sort of latitude towards respondents in the matter of condonation of delay is not impermissible. Having gone through the materials placed before me I am not persuaded to think that there was no contumacious negligence on the part of respondents in not contesting the case. Having regard CRP Nos.95 & 151/2010 6 to the facts and circumstances including the stake involved, notwithstanding that there is no detailed order passed by the learned Munsiff-Magistrate on I.A.Nos.676 and 677 of 2008 (ofcourse, I stated that there is some discussion in the order on I.A.Nos.387 and 389 of 2009) I am not inclined to think that this Court sitting in revision should interfere in the orders passed by the trial court. In the circumstances I am not inclined to interfere with the impugned orders. But I make it clear that until disposal of the suit there will be an order of injunction restraining respondents from realising the amount from petitioner personally pursuant to Ext.A1, demand notice. Trial court is directed to dispose of the suit as early as possible. I.A.Nos.418 of 2010 in C.R.P.No.95 of 2010 and 722 of 2010 in C.R.P.No.151 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks