IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 22ND MAY 2008 / 1ST JYAISHTA 1930 CRP.No. 682 of 2007() --------------------- CMA.3/2006 of VI ADDL.DISTRICT COURT, ERNAKULAM .................... REVN. PETITIONER: PETITIONERS/RES.1 TO 4 AND LEGAL REPRESENTATIVES --------------------- 1. PRAMEELA ANNA MATHEW, W/O. GEORGE VARGHESE, C/E/N HOUSE, VYTTILA. 2. SUNILA MARY MATHEW, D/O. LATE K.A.MATHEW, C/E/N HOUSE, VYTTILA. 3. SARA MATHEW, W/O. LATE K.A.MATHEW, C/E/N HOUSE, VYTTILA. 4. MATHEW VARGHESE, AGED 51, S/O. VARGHESE, 16/A LINK HIGHT, PANAMPALLY NAGAR, KOCHI-36. 5. LIYA ELISE MATHEW, AGED 21, D/O. MATHEW VARGHESE, 16/A LINK HIGHT, PANAMPALLY NAGAR, COCHIN-36. 6. MATHEW VARGHESE, AGED 19, S/O. MATHEW VARGHESE, 16/A LINK HIGHT, PANAMPALLY NAGAR, COCHIN-36. (PET. 4,5, AND 6 ARE THE LEGAL HEIRS OF THE DECEASED R2 ANNE MARY MATHEW WOULD DIED ON 18/12/2006). BY ADV. SRI.P.CHANDY JOSEPH RESPONDENTS: PETITIONER ------------------------ 1. JAMES MATHEW, S/O. MATHEW PULLAT, POOVARANI HOUSE, MEENACHIL TALUK. 2. SKARIA JOSEPH, S/O.JOSEPH THOMAS, UNPIDI, KAYYALAPARAMBIL, THETTEKADU KARA, CHANGANASSERY TALUK. 3. VALSAMMA, W/O.JAMES MATHEW PULLAT, POOVARANI KARA, CHANGANASSERY TALUK. BY ADV. SRI.A.T.ANILKUMAR FOR R2 SMT.ATHIRA T.DAS FOR R2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/05/2008, ALONG WITH CRP NO.704 OF 2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- C.R.P.Nos.682 & 704 of 2007 ------------------------------- Dated this the 22nd May, 2008. O R D E R Petitioners are defendants in O.S.No.511/1995, on the file of the Sub Court, Ernakulam. Respondents are plaintiffs. The suit was filed for permanent prohibitory injunction. Petitioners-defendants in their written statement raised a counter claim. The suit was instituted through the power of attorney holder of respondents. When the same was taken up for hearing, counsel appearing for plaintiffs reported that he has no instructions. As directed by the court, he sent a notice to the power of attorney holder. As there was no response, he reported the matter to the court, and the suit was dismissed for default on 3.12.1998. Consequently, ex-party decree was granted in the counter claim in favour of the petitioners. After a delay of 847 days, plaintiffs filed I.A.Nos.1534, 1535, 1536 and 1537 of 2001 before the trial court respectively to condone the delay, set aside ex- parte decree granted in the counter claim, and also to restore the suit to file. The learned Sub Judge, as per order, dated 16.3.2005, dismissed all the applications holding that there is no sufficient cause CRP.Nos.682 & 704/2007 2 to condone the inordinate delay or to set aside ex-parte decree or to restore the suit to file. Those orders were challenged before District Court, Ernakulam, in C.M.A.Nos. 3 & 4 of 2006. The learned District Judge, on re-appreciation of the evidence, found that plaintiffs were admittedly working abroad and suit was instituted through the power of attorney holder, who was examined before the trial court, in these applications, as PW.1. The learned District Judge also found that though in the petitions, power of attorney holder was blamed by plaintiffs for not prosecuting the suit properly, the same power of attorney holder was examined as PW.1 on their behalf. The learned District Judge also found that there was gross negligence on the part of power of attorney holder in not prosecuting the suit, which caused the dismissal of the suit, as well as granting an ex parte decree in the counter claim. But it was found that that is not a ground to deny an opportunity to the plaintiffs to have a decision on merit, especially, when they are not in India. It is in such circumstances, learned District Judge took a lenient view and held that inordinate delay and negligence on the part of power of attorney holder could be condoned, on payment of cost of Rs.5000/=, irrespective of the result of the suit. Consequently, on payment of cost, he allowed all applications, restored the suit and set aside ex-parte decree granted in the counter CRP.Nos.682 & 704/2007 3 claim. The learned District Judge also directed the trial court to dispose of the suit. Aggrieved by the said order, defendants have preferred these revision petitions under Section 115 of Code of Civil Procedure. 2. The learned counsel appearing for the petitioners and learned counsel appearing for respondents were heard. 3. The argument of the learned counsel appearing for the petitioners is that in the petitions filed before the trial court, plaintiffs have unambiguously alleged that power of attorney holder did not properly prosecut the suit, and they did not explain properly their failure to appear, when the suit was dismissed for default and an ex parte decree was granted in the counter claim. It was argued that if the power of attorney holder has not properly prosecuted the suit, they would not have examined him as a witness later on, and the very fact that the same power of attorney holder was examined establishes that there is no bonafide in the case. It is therefore argued that first appellate court should not have accepted the evidence or the case of plaintiffs to restore the suit or to set aside the decree granted in the counter claim. Counsel also submitted that trial court did not receive CRP.Nos.682 & 704/2007 4 the proof affidavit filed by PW.1, but he was allowed to be examined, on condition that a fresh power of attorney would be produced, and as no such power of attorney was produced, evidence of PW.1 should not have been accepted and the order passed by the learned District Judge is not sustainable. 4. It is true that the power of attorney holder was negligent in prosecuting the suit. It is also true that plaintiffs have specifically blamed the very same power of attorney holder, and who was again been subsequently examined in the applications. But when it is not disputed that plaintiffs are not in India and working in abroad, they have to depend on some other person for prosecution of the case. It is in such circumstances, even though PW.1 was not prosecuting the suit properly and was negligent, plaintiffs were compelled to examine him. Though learned counsel appearing for the petitioners submitted that without producing a fresh power of attorney, PW.1 should not have been examined, there is no case that the original power of attorney granted in favour of PW.1 was revoked at any point of time. Therefore, technically, there is no necessity to execute a fresh power of attorney in favour of PW.1, and for that reason, no interference is warranted in the impugned order passed by CRP.Nos.682 & 704/2007 5 the learned District Judge. 5. What has been done by the learned District Judge was only to grant an opportunity to the parties to have a decision on merits. No prejudice will be caused to the petitioners by adopting that course. True, there was an inordinate delay. It was compensated by learned District Judge, by awarding a cost of Rs.5000/=. In such circumstances, I do not find any illegality or irregularity in the impugned order passed by the learned District Judge, especially, when that order was passed in the interest of justice. Revision petitions are therefore dismissed. The learned Sub Judge is directed to dispose the suit and counter claim, as expeditiously as possible. M.SASIDHARAN NAMBIAR, JUDGE nj.