IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 CRP.No. 383 of 2010() --------------------- OS.285/2006 of PRL.SUB COURT,KOTTAYAM .................... REVN. PETITIONER/ PLAINTIFF/RESPONDENT IN IA: ----------------------------------------------- REJIMOL THOMAS,D/O.THOMAS,AMAL GARDENS, (PARAMALAYIL),ATHIRAMPUZHA,KOTTAYAM. BY ADV. SMT.RUBY K.JOSE RESPONDENT/ DEFENDANT/PETITIONER IN IA: ----------------------------------------- SHAJANCHAKKIETH,S/O.PAILY, CHAKKIETH HOUSE,ANGAMALY,PROPRIETOR SHARES, ANGAMALY. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.383 of 2010 --------------------------------------- Dated this 23rd day of July, 2010 ORDER Petitioner filed O.S.No.285 of 2006 in the court of learned Sub Judge, Kottayam for realisation of Rs.15,00,000/- with interest and cost from the respondent based on a dishonoured cheque. Respondent/defendant was set ex parte and an ex parte decree followed on 20-08-2007. On 07-02-2009 respondent filed I.A.Nos.626 and 627 of 2009 to set aside the ex parte decree and to condone the delay of 509 days in filing that application. Those applications were resisted by petitioner but, allowed by the learned Sub Judge on terms of cost vide order dated 10-03-2010. That order is under challenge in this revision. Learned counsel contends that no sufficient cause has been shown either to condone the delay of 509 days or to set aside the ex parte decree and that reason stated by the respondent is proved to be not correct. According to the learned counsel ex parte decree ought not have been set aside as attempt of respondent is only to protract the proceeding. 2. No doubt delay involved is of 509 days. Respondent stated that pursuant to the summons received in the suit he appeared in the case but, could not file written statement. Based C.R.P.No.383 of 2010 : 2 : on the very same cheque petitioner had filed a criminal complaint against him in the court of learned Judicial First Class Magistrate-II, Kottayam for offence punishable under section 138 of the Negotiable Instruments Act and he was attending that court regularly. He was defended by Adv. Sri. M.P. Johnson in that case and as instructed by that Advocate the civil case was entrusted to Sri. Saji Jacob. That Advocate concerned told respondent that since it is a civil case, proceeding might take some time and as and when his presence is required he will be intimated about that. But to his surprise he did not get any information and learned about the ex parte decree on 13-01-2009 when he got notice in the execution petition. Thereon he filed applications. Petitioner contended that suit was posted on 22-11-2006, 05-12-2006 and 05-01-2007 for filing written statement and on 05-01-2007 it was represented that written statement was being filed. Case was posted on 05-02-2007 and 22-06-2007 for framing issues. Since no written statement was filed, respondent was set ex parte on 22-06-2007 and ex parte decree followed. It is also contended that Adv. Johnson was appearing for respondent in the civil case on behalf of respondent. 3. No doubt there is some delay and latches on the part of respondent. But, I must also bear in mind that petitioner's suit C.R.P.No.383 of 2010 : 3 : is for recovery of Rs.15,00,000/- and in the normal course when such a huge amount is claimed, respondent would not have declined to contest the case particularly as he was vigorously contesting the criminal case and appearing in that court. In such a situation it is unlikely that he would have refused to attend to the civil case. In that situation case of respondent that the Advocate concerned had assured him that as and when his presence is required he will be informed assumes importance. There is no reason to think that respondent purposely invited an ex parte decree for payment of Rs.15 lakhs with interest and cost. 4. In matters like this court has to exercise the discretion bearing in mind the well known principles regulating discretionary jurisdiction. Though in the matter of restoration of a suit dismissed for default, V. R. Krishna Iyer, J. held in Sreedhara Kurup Vs. Mickel (1968 KLT 599) that question whether discretion has to be exercised in a case is largely a matter of wise discretion to be exercised by the court bearing in mind the wholesome principle that right of a party to be heard should be negatived only if there is gross negligence or gross carelessness and that if some steps have been taken and application for restoration has been made with some diligence and some evidence adduced making out sufficient cause for C.R.P.No.383 of 2010 : 4 : absence, restoration should be ordered, minor misconduct or latches being corrected by the common curative of costs. Courts are also alerted that brooding spirit of natural justice must be in the background while ascertaining whether there is sufficient cause and that a strict and narrow construction would defeat the ends of justice. Here is a case where as I stated there is a claim for Rs.15,00,000/- with interest and cost and respondent was fighting the criminal case based on the same cheque. I am not persuaded to think that there was contumacious negligence or willful latches on the part of respondent so that court below should have refused an opportunity to the respondent to contest the case on merit. Learned Sub Judge has exercised the discretion in the correct perspective bearing in mind the principles stated in the decision referred supra. In that view of the matter there is little scope for interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution. Petition fails. It is dismissed. Learned Sub Judge is directed to expedite trial and disposal of the case. (THOMAS P JOSEPH, JUDGE) Sbna/-