IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 CRP.No. 469 of 2011() ------------------------------- CMA.38/2011 of DISTRICT COURT, MANJERI OS.191/2006 of SUB COURT, TIRUR .................... REVN. PETITIONER(S): RESPONDENT NO.1 --------------------------------------------------------------- C.KUNHIMON, S/O.K.ALAVI, VELLCORAYIL HOUSE, PERUMBADAPPU P.O, PIN- PONNANI TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.JAMSHEED HAFIZ RESPONDENT(S): PETITIONER AND RESPONDENTS 2 TO 7 ------------------------------------------------------------------------------------ 1. SALIM, S/O.MOHAMMEDKUTTY, TALIPARAMIL NALAKATH , THALOOKKARA P.O., PIN 676 101, TIRUR TALUK, MALAPPURAM DISTRICT. 2. T.N.MOHAMMEDKUTTY (DIED), S/O. MOHAMMED MASTER DO. DO. 3. NABEESU , W/O.T.N.MOHAMMEDKUTTY, DO. DO. 4. NOORJAHAN, D/O.T.N.MOHAMMEDKUTTY, DO . DO. 5. SULAIKA, D/O. T.N. MOHAMMEDKUTTY, DO. DO. 6. SHAMSUDHEEN, S/O.T.N.MOHAMMEDKUTTY, DO. DO. 7. MUNEER, S/O.T.N.MOHAMMEDKUTTY DO. DO. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOMAS P. JOSEPH, J. ---------------------------------------- C.R.P.No.469 of 2011 --------------------------------------- Dated this 27th day of October, 2011 ORDER This civil revision arises from the judgment of the learned Additional District Judge, Manjeri in C.M.A.No.38 of 2011 setting aside the order on I.A.No.4340 of 2009 in O.S.No.191 of 2006 of the Court of learned Sub Judge, Tirur. That was a suit filed against the deceased sole defendant claiming `.1,02,000/- by way of damages for slander. The suit was decided ex parte in the absence of the original defendant. Learned Sub Judge acting upon the affidavit of petitioner granted a decree for `.1,01,000/-. Original defendant filed application to set aside the ex parte decree with a request to condone the delay of 958 days in filing that application. While the application was pending, original defendant died on 22.05.2007. The fight was taken up by his legal representatives. Learned Sub Judge found no reason to condone the delay and set aside the ex parte decree. Dismissal of I.A.No.4340 of 2009 was challenged before the learned Additional District Judge in C.M.A.No.38 of 2011. Learned District Judge after referring to various aspects of the matter C.R.P.No.469 of 2011 -: 2 :- including the manner in which learned Sub Judge passed the impugned judgment (though in the absence of sole defendant, allowing `.1,01,000/- as damages merely on the affidavit of respondent) came to the conclusion that the ex parte judgment and decree are liable to be set aside and allowed the C.M appeal on condition of payment of cost of `.5,000/-. That order is under challenge. 2. It would appear that so far as delay in filing I.A.No.4340 of 2009 is concerned, the Advocate concerned has given evidence. That evidence was not accepted by the learned Sub Judge. It is considering the overall aspects of the matter including that a decree for `.1,01,000/- was granted by the learned Sub Judge merely on the affidavit of the respondent that the appellate court thought that legal representatives of the deceased defendant must be given an opportunity to contest the case. That discretionary jurisdiction was exercised by the learned District Judge making respondent liable to pay cost of `.5,000/- for the inconvenience caused to the petitioner. I do not find reason to interfere with the judgment of the appellate court in revision. But the grievance of petitioner that the suit is pending from 2006 onwards has to be redressed. Learned Sub C.R.P.No.469 of 2011 -: 3 :- Judge is directed to expedite the disposal of suit giving it top priority. This civil revision is disposed of with the above direction. Sd/- (THOMAS P. JOSEPH, JUDGE) Sbna/-