IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 25TH JANUARY 2010 / 5TH MAGHA 1931 CRP.No. 2623 of 2002(B) ----------------------- AGAINST THE ORDER DATED 20/09/2002 IN IA 5365/2001 IN OS.680/1995 of I ADDL.SUB COURT,ERNAKULAM .................... REVN. PETITIONER(S): PETITIONER/DEFENDANT ----------------------------------------- K.A.XAVIER, S/O. THRESSIA, KOCHUPARAMBIL, VYTTILA DESOM, POONITHURA VILLAGE, KANAYANNUR TALUK, ERNAKULAM, REPRESENTED BY HIS NEXT FRIEND, SON SRI.JOSY, S/O. K.A.XAVIER, DO. DO BY ADV. SRI.N.R.CHANDRASEKHARAN SRI.A.L.GEORGE RESPONDENT(S): CR.PETITIONER/PLAINTIFF -------------------------------------- K.X.ALLESH, S/O. XAVIER, KOTTAZHATH HOUSE,VYTTILA DESOM, POONITHURA VILLAGE KANAYANNUR TALUK, ERNAKULAM. BY ADV. SRI.S.SHYAM SRI.LATHEESH SEBASTIAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/1/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON C.M.P.NO. 6601/02 & 6602/02, i.a.1471/03 & 2046/03 IN CRP 2623/02 DISMISSED 25/1/10 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ C.R.P.NO.2623 OF 2002 ------------------------------------------ Dated 25th January 2010 O R D E R Respondent instituted O.S.680/1995 before Sub court, Ernakulam against revision petitioner, a suit for specific performance of an agreement for sale. Petitioner appeared through Advocate Sri.Mathappan and filed written statement. Subsequently he remained absent and an ex-parte decree was passed on 14/9/1999. Youngest of the four children of the petitioner filed three applications before the learned Sub Judge in 2001. One was an application under Rule 15 of Order XXXII, to appoint the said youngest son of the petitioner as the guardian contending that petitioner father was suffering from mental Crp 2623/02 2 illness when the ex-parte decree was passed and therefore, he could not protect his interest at that time and in such circumstances, he is to be permitted to represent the petitioner as his guardian. Other two petitions were filed under Rule 13 of Order IX of Code of Civil Procedure to set aside the ex-parte decree and other under Section 5 of Limitation Act to condone the delay in filing the applications. Learned Sub Judge dismissed all the petitions. Petitioner filed C.M.A.38/2001 challenging dismissal of the petition under Rule 13 of Order IX and C.R.P.362/2001 and C.R.P.428/2001, against the dismissal of other two applications. This court as per order dated 12/3/2001, dismissed revision petitions as well as appeal finding that application under Rule 15 of Order XXXII of Code of Civil Procedure was filed by the son, who seeks to be appointed as the guardian and he did not even Crp 2623/02 3 file an affidavit. It was found that question of setting aside ex-parte decree would arise only if defendant was mentally ill on the date when the ex-parte decree was passed. This court granted an opportunity to file proper application under Rule 15 of Order XXXII and to establish that defendant in the suit was mentally infirm and incapable of protecting his own interest on the date of the ex-parte decree. Even though that order was passed on 13/3/2001, youngest son of the petitioner filed I.A.5365/2001 under Rule 15 Order XXXII, to get himself appointed as the guardian of the father and I.A.5315/2001 under Section 5 of Limitation Act to condone the delay of 1215 days. Learned Sub Judge by common order dated 20/9/2002 dismissed both petitions. C.R.P.2623/2002 is filed challenging dismissal of I.A.5365/2001. Petitioner had filed C.R.P.446/2003 challenging the order in I.A.5315/2002. I.A.5315/2002 was Crp 2623/02 4 filed to condone the delay for the reason that though this court by the order in C.R.P.428/2001 and C.R.P.362/2001 had permitted to file a fresh application, it was filed after a delay of more than six months from the date of the order. C.R.P.446/2003 was later dismissed on 12/12/2008. Hence the prayer to condone the delay already stands dismissed. 2. Learned counsel appearing for the petitioner and learned counsel appearing for respondent were heard. 3. Argument of the learned counsel appearing for the petitioner is that evidence of Pws.2 and 3 the doctors with Exts.A1 to A4 establish that petitioner was mentally ill due to Psychosis and was under the treatment of the doctor who was examined as PW2 and later he was hospitalised at Tripunithura and was under the treatment of PW3 the doctor and evidence of PW1, the son of the petitioner Crp 2623/02 5 establishes that petitioner was under the treatment for mental illness from 1992 onwards and in such circumstances, learned Sub Judge should have appointed the youngest son of the petitioner as guardian and found that ex-parte decree passed on 14/9/1999 is void as defendant could not have defended the suit at that time. 4. Learned counsel appearing for the respondent pointed out that petitioner, defendant in the suit was examined by the learned Sub Judge personally and found that he was not mentally ill and was fit enough to defend the suit and in such circumstances, there is absolutely no reason to interfere with the orders. Learned counsel also pointed out that evidence of PW3 is irrelevant as his evidence is only with regard to the mental capacity of the petitioner subsequent to 2001 and what is to be looked into the mental Crp 2623/02 6 condition of the defendant on 14/9/1999 and earlier to said date. Learned counsel also pointed out that evidence of PW2 establishes that he is only a MBBS doctor and not a psychologist and his evidence is insufficient to prove that defendant was mentally ill on 14/9/1999 and therefore, there is no reason to interfere with the order. 5. Petitioner was represented by late Advocate Mathappan. Sri.Mathappan had filed written statement on behalf of the defendant. Learned Sub Judge on verifying the records found that suit was being hotly contested till the counsel reported no instructions and ex-parte decree was passed on 14/9/1999. Even though Advocate Sri.Mathappan was available for giving evidence, he was not examined to disclose whether the instructions to file written statement was given by the defendant or not. Evidence of Advocate Sri.Mathappan would Crp 2623/02 7 have shown the mental capacity of the defendant, on the date when written statement was filed. As rightly found by the learned Sub Judge, evidence of PW1 establishes that during the relevant period he was not in Kerala and was in Ootty. Petitioner was residing with his eldest son. He was not examined. Apart from the sons, there are two daughters. They were also not examined. 6. A cursory look on Exts.A1 and A2 certificates issued by PW2 show that they cannot be relied on. If they are to be believed, Ext.A1 was issued in 1996 and Ext.A2 was issued in 1999, both prior to the date of the ex-parte decree. It is not explained for what reason the said certificates were obtained by the defendant or by the son in 1996 and 1999. If those certificates were issued by PW2 subsequently, the date of certificates could only be subsequent dates. The very fact that Crp 2623/02 8 PW2 is prepared to oblige the petitioner by issuing anti-dated certificates would establish that his evidence cannot be believed. If Exts.A1 and A2 are to be believed, PW2 must maintain records at his residence, as he claimed that petitioner was being treated from the residence, to show that dates of consultation and period of treatment, because both Exts.A1 and A2 disclosed that from a particular day onwards petitioner was suffering from illness. PW2 had no case that he is maintaining any such records or those certificates were issued with reference to any records. If petitioner was being treated by PW2 for mental illness, prescription issued by PW2 would have been the best evidence to prove the treatment. But no such records were produced. Learned Sub Judge has rightly appreciated the evidence and found that based on the evidence of PW2 it cannot be found that Crp 2623/02 9 petitioner was not mentally fit to defend the suit, when the suit was filed or even when the ex-parte decree was passed on 14/9/1999. 7. Added to this, the enquiry conducted by the learned Sub Judge by questioning the petitioner personally establishes that he was not suffering from any mental illness even in 2002. In such circumstances, I find no reason to interfere with the impugned order passed by the learned Sub Judge. Civil revision petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.