IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930 WP(C).No.3718 of 2009 (P) ------------------------------- OS.144/2008 of SUB COURT, CHENGANNUR .................... PETITIONER: --------------- USHA BHASI, W/O.K.P.BHASI, VADAKEVANIYEZHATHU HOUSE, KADAMPUR MURI, ENNACKADU VILLAGE BUDHANUR PO., CHANGANNUR TALUK, ALAPPUZHA. BY ADV. SRI.ABRAHAM SAMSON SMT.LOVELY SAMSON RESPONDENT: ---------------- R.RAVI, PARADIYIL HOUSE, OMALLOOR PO., PANNYALY MURI, OMALOOR VILLAGE, KOZHENCHERY TALUK, PATHANAMTHITTA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.3718 OF 2009 ------------------------------------------------ Dated this the 4th day of February, 2009 JUDGMENT The petitioner who is the plaintiff in O.S.144/08 on the file of the Sub Court, Chengannoor who obtained an ex parte decree in the said suit on 19/11/08 consequent on nonappearance of the respondent/defendant when the case stood posted for trial in the list, is the petitioner before me. The respondent filed Ext.P3 application I.A.685/08 under Order 9 Rule 13 on 06/12/08 seeking for an order setting aside the ex parte decree on the ground that he was not having knowledge of the posting of the case to 18/11/08 as by an error of the clerk of his advocate while noting the dates of cases in the office diary, posting date of this suit was not entered on the relevant page of the office diary, but happened to enter another case on that day by W. P. C. No.3718 OF 2009 -2- oversight and the error came to the notice of his lawyer also only when he approached his lawyer for taking copies of proceedings in the above case. Though the petitioner/plaintiff objected to the restoration, the court below allowed the restoration vide Ext.P5 order. Hence, this W.P.C assailing Ext.P5 order. 2. It is vehemently contended before me by the learned counsel for the petitioner/ plaintiff that the above averment regarding mistake committed by the lawyer's clerk to note the posting date of the case in the office diary is not true and that had an opportunity been afforded to him, he would have cited the clerk to produce the office diary and established that the allegation made in Ext.P3 application is wrong and that without discussing any of the contentions raised in Ext.P4 objection filed on 01/01/09, W. P. C. No.3718 OF 2009 -3- the court below has passed Ext.P5 order impugned on the 3rd day of January, 2009 allowing the application on payment of cost of Rs.1,000/- to the counsel for the plaintiff and Rs.250/- to the District Legal Services Authority. He contends that disposal of Ext.P3 application without consideration of the objection in such a casual manner has worked out hardship to the petitioner and that the ex parte decree should not have been set aside. 3. I do not see much merit in the arguments so advanced. The case was posted in the list for trial to 18/11/08 and it was decreed ex parte on 19/11/08. The restoration application has been filed within time on 06/12/08. It is seen from Ext.P1 copy of plaint that the suit is for recovery of an amount of Rs.12 lakhs from the defendant and that very serious contentions are raised in W. P. C. No.3718 OF 2009 -4- Ext.P2 written statement filed by the respondent/defendant. It is too much to believe that the defendant who has resisted the suit involving such a huge claim raising very serious contentions in the written statement would have abstained from resisting the suit wilfully. It cannot even be thought that the intention of the defendant was to protract the litigation in which case he would not have filed restoration application within 16 days of the ex parte decree passed in the suit. Considering the nature of the explanation offered for the absence and as such instances usually happen at the hands of clerks of lawyers the court below probably bearing in mind the nature of the suit and the claim involved thought it fit to restore the suit to afford an opportunity to the respondent/defendant to contest the suit and W. P. C. No.3718 OF 2009 -5- passed Ext.P5 order allowing the restoration application on terms. I do not see any reason to interfere with the said order when the court below has exercised its discretion judiciously and in the most appropriate manner considering the nature of the claim and the defence set up and it is not necessary that a detailed judgment is to be written by the court while allowing a petition under Order 9 Rule 13 overruling each and every points of objection raised in the counter and justifying the truth of the averments made explaining the absence in the affidavit accompanying Order 9 Rule 13 petition. It is the cardinal principle that justice is to be meted out to the parties. I am not of the view that the petitioner can be allowed to walk off with an ex parte decree for Rs.12 lakhs if at all the defence contention be true that no amount is W. P. C. No.3718 OF 2009 -6- due from him to the petitioner/plaintiff. There is nothing wrong in the court below having afforded an opportunity to the respondent/defendant to contest the suit on merits. 4. Learned counsel for the petitioner has cited before me a decision of this Court in Subramania Iyer v. Valsala (2000(1) KLT, 751) wherein a learned Single Judge of this Court has drawn a distinction between good cause and sufficient cause and has held that for establishing “good cause” envisaged under Rule 7 of Order 9 only a lesser degree of proof is required whereas proof of a higher standard is required to establish “sufficient cause” envisaged under Order 9 Rule 13 of the C.P.C. I am on respectful agreement with the view taken by the learned Single Judge, but however, that decision has no application to the facts of W. P. C. No.3718 OF 2009 -7- this case as circumstances whereunder the learned Single Judge was called upon to decide as to whether an ex parte order has to be set aside was in a case where the defendants were practically making the procedure of the court a mockery. That is not the circumstance in this case. There is absolutely no merit in the contentions advanced in the instant case assailing Ext.P5 order passed by the court below. 5. In the circumstances, refusing admission, I dismiss this writ Petition. K.P.BALACHANDRAN, JUDGE kns/-