IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 22ND FEBRUARY 2008 / 3RD PHALGUNA 1929 CRP.No. 118 of 2008() --------------------- CMA.49/2007 & 50/2007 of DISTRICT COURT,KOZHIKODE OS.135/2000 of MUNI-MAGI.COURT, PERAMBARA .................... REVN. PETITIONER: APPELLANT/PETITIONER/DEFENDANT ------------------------------------------------ CHATHOTH CHALIL KRISHNAN, AGED 51 YEARS S/O.CHANGARAN, MENHANNIAM AMSOM DESOM KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.A.SUDHI VASUDEVAN RESPONDENTS: RESPONDENT/RESPONDENT/PLAINTIFF -------------------------------------------- KATTILLATH VIJAYAN, S/O.KANNAN NAIR KOOTHALI AMSOM DESOM, KOYILANDY TALUK KOZHIKODE DISTRICT. BY THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- C.R.P. NO. 118 OF 2008 --------------------- Dated this the 22ndday of February, 2008 ORDER This revision petition is preferred against the order of the District Judge, Kozhikode, in CMA Nos. 49/07 & 50/07. These CMAs are preferred against the order of the Munsiff-Magistrate, Perambra, in IA Nos. 541/06 & 542/06 in OS 135/00. Those applications were one to condone the delay of 1256 days and the other to set aside the ex parte order. 2. Heard learned counsel for the revision petitioner. Learned counsel had brought to my notice the decision of this court as well as the Apex court wherein the view taken is that in the question of condoning the delay the court has to take a liberal view. Courts have also cautioned that the court cannot condone the delay on sympathetical grounds but on legal grounds. With these principles in mind, let me analyse this case. The delay is of 1256 days. The ground alleged is that the wife of the petitioner was undergoing treatment in Kasthurba Medical College. Petitioner is a ration shop dealer and he was conducting the business. In the court C.R.P. No.118/08 2 below the petitioner as well as the Doctor were examined. Learned District Judge on analysis found the evidence as follows. It is true that there is evidence to show that the wife of the petitioner is an epilepsy patient. But it is not in evidence for how long she has been suffering. There are some documents to show that she had attended the hospital during 2006. It has to be remembered that the suit was decreed on 10.7.01. Thereafter an application for setting aside the ex parte decree was filed. The matter was restored and it was further listed on 24.3.03 and set ex parte. The documents relied on relates to 2006. i.e, almost after three years. The court found that there is no document to show that during the relevant period of 2004- 05, which would establish the hospitalisation or treatment of petitioner's wife. The court also held that petitioner is conducting a ration shop and the registers that are maintained in the ration shop will show who exactly was running the shop during the relevant period. The said documents were not produced. The court further found that the execution petition was filed as early as in 2003 as EP 151/03 where the notice was actually served on the revision petitioner. But even though notice was served on him, he failed to appear in the court. He did not even object to the execution petition. C.R.P. No.118/08 3 The court further found that the decree holder has deposited the balance consideration and the document has been executed and registered through court. Thereafter he has filed an application IA 183/05 for getting possession of the property. There also notice was served but he did not raise any objections but kept quiet. Thereafter an application was filed for setting aside the ex parte decree. So the court found that there was nothing to show that the wife was hospitalised continuously and that the conduct of the defendant seemed to be contumacious and on an analysis of the entire materials, agreed with the court below and dismissed the CMA applications. 3. It is true that the principles of natural justice always demands a chance for hearing provided, the petitioner is not guilty of grave misconduct or gross negligence. Here is a case where the suit was decreed ex parte in 2001. It was set aside in 2002. Then, it was listed in 2003 and again set ex parte. Thereafter in 2003, execution petition was filed and the notice was served on the petitioner. Again in the interlocutory applications, 2005 also notice was served on the appellant. So it is very clear that the appellant was fully aware of the decree and his grievance is about the ailment of his wife. There is C.R.P. No.118/08 4 nothing to show that during any point of time in 2004 or 2005, the wife was hospitalised for the treatment of epilepsy in Kasthurba Medical College. He has been running the ration shop during all these time, which indicates that he was looking after his own affairs. The cumulative facts observed by the District court amounts to contumacious conduct and there is no proper explanation for the delay. As stated by me earlier, the court has to be liberal in condoning the delay but not on sympathetical grounds and the two courts have appreciated the facts and had come to a conclusion regarding the lack of bonafides of the claim put forward by the petitioner and it is not really correct for this court to re-appreciate the evidence in another direction to arrive at a different conclusion. I do not find any illegality or irregularity committed by the courts below in arriving at a decision. Therefore the civil revision petition lacks merit and it is accordingly dismissed. M.N.KRISHNAN, JUDGE vps C.R.P. No.118/08 5