IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932 CRP.No. 516 of 2010() --------------------- CMA.8/2010 of ADDL.DISTRICT COURT,KOTTAYAM OS.311/2006 of PRL.MUNSIFF COURT, KOTTAYAM .................... REVN. PETITIONER/PETITIONER/DEFENDANT: ----------------------------------------- S.VASUDEVAN, KALAMBUKKAVU HOUSE, MOOLAVATTAM KARA, NATTAKOM VILLAGE. BY ADV. SRI.V.ANIL (K/1480/98) RESPONDENTS/COUNTER PETITIONER/PLAINTIFF: ------------------------------------------- 1. C.K.JANAKI, W/O. M.A.THANKAPPAN, MOOSSARIKUNNEL HOUSE, THELLOKOM P.O., PEROOR VILLAGE, KOTTAYAM. 2. JAINAMMA, D/O. THANKAPPAN, -DO- 3. KANAKAMMA, D/O. THANKAPPAN, KURUVANTHANATHU HOUSE, VAYALA P.O., KADAPLMAMATTAM VILLAGE, KOTTAYAM. 4. JAGADAMMA, D/O. THANKAPPAN, THRIVENIYIL HOUSE, MARAVANTHURUTHU P.O., VAIKOM TALUK, KOTTAYAM. 5. SREEDEVI, D/O. THANKAPPAN, SRAMBICKAL HOUSE, KUMARAKOM P.O., KOTTAYAM. 6. VINODINI, D/O. THANKAPPAN, MOOSSARIKUNNEL HOUSE, THELLAKOM P.O., PEROOR VILLAGE, KOTTAYAM. 7. BINDU, D/O. THANKAPPAN, THADATHIL HOUSE, ARPOOKKARA P.O., KOTTAYAM, REP. BY POWER OF ATTORNEY HOLDER, K.G.SADASIVAN, KURUVANTHANATHU HOUSE, VAYALA P.O., KADAPLAMATTAM VILLAGE, KOTTAYAM. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/10/2010 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.516 of 2010 --------------------------------------- Dated this 01st day of October, 2010 ORDER This revision is in challenge of judgment of learned Additional District Judge, Kottayam in C.M.A.No.8 of 2010 confirming dismissal of I.A.No.1632 of 2009 in O.S.No.311 of 2006 of the learned Principal Munsiff, Kottayam. That is a suit filed by the respondent for recovery of money based on chitty agreement. The suit was decided ex parte. Later, petitioner filed applications to set aside the ex parte decree and to condone the delay in filing the applications. Those applications were dismissed for default. To restore those applications petitioner filed I.A.No.2994 of 2007 which again was dismissed for default on 15-03-2008. Thereafter petitioner filed an application for review of order dated 15-03-2008 and I.A.No.1632 of 2009 to condone the delay of 441 days in filing the applications for review. I.A.No.1632 of 2009 was dismissed and consequently application for review (I.A.No.1631 of 2009) was also dismissed. Dismissal of I.A.Nos.1631 and 1632 of 2009 were challenged in C.M.A.No.8 of 2010. That appeal was dismissed. Hence this revision. It is contended by learned counsel that petitioner was in C.R.P.No.516 of 2010 : 2 : fact set ex parte and that before the decree the suit was dismissed for default but no notice of application for restoration was served on petitioner. Learned counsel says the decree is being executed and the property is about to be sold. Hence this revision challenging judgment and order of the court below. 2. It is contended by learned counsel that petitioner was not set ex parte and in support of that learned counsel has produced a copy of the B diary. Learned Principal Munsiff has observed in the impugned order that on perusal of the back records it is revealed that petitioner was set ex parte. It is thereafter that suit is said to be dismissed for default and allegedly without notice to the petitioner, it was restored. I am not at the question whether the court was justified in passing a decree against petitioner on the grounds pleaded by petitioner in this proceeding. Petitioner can challenge the decree itself by way of appeal if he is otherwise entitled to that course. Now the question is whether order on I.A.Nos.1631 and 1632 of 2009 requires interference. 3. It is not disputed that petitioner filed application to set aside the ex parte decree and to condone the delay. Three applications – I.A.Nos.2029, 2030 and 2031 of 2007 were filed in C.R.P.No.516 of 2010 : 3 : that regard. It is pertinent to remember that in the meantime respondent filed execution petition in the year 2007 and indisputably notice of execution petition was served on petitioner. I.A.Nos.2029 to 2031 of 2007 were dismissed for default. It is thereafter that petitioner filed I.A.No.2994 of 2007 for restoration of the applications dismissed for default. I.A.No.2994 of 2007 also met with the same result - a dismissal for absence of petitioner. That dismissal was on 15-03-2008, certainly at a time when execution petition was pending with notice to the petitioner. Still it took 441 days for him to approach the learned Munsiff with I.A.No.1631 of 2009 for review of dismissal of I.A.No.2994 of 2007 for default. Explanation given by the petitioner for delay is that his counsel and the clerk did not prosecute the matter properly. There is no point in blaming the counsel and/or clerk in that regard. Atleast in 2007 petitioner was aware of the execution petition and I.A.No.2994 of 2007 was dismissed on 15-03-2008. It is after 441 days that he came with present application. It is difficult to think that in spite of the execution petition with request for sale of property being pending, he did not make any enquiry about the applications for setting aside the ex parte decree. Contumacious negligence is C.R.P.No.516 of 2010 : 4 : writ large on the petitioner. Learned counsel has placed reliance on the decision in Secretary, Department of Horticulture, Chandigarh and Anr. Vs. Raghu Raj (2009(1) KHC 310 (SC)) where the Supreme Court has held that failure of appearance of Advocate is not only unfair to the client but also unfair and discourteous to the court and a client should not suffer for that. Every case has to be decided on the facts of the case. A decision is an authority for the facts decided therein. This court had occasion to consider the lethargy on the part of litigants in conducting trial in the trial court. In Abdul Khader Vs. Surburban Chit Funds (P) Ltd (2006(1) KLT 749) this court stated that an incorrect impression has gained ground that any and every error, inadequacy and contumacious lethargy in the conduct of cases can be corrected at later stages by approaching the superior courts. Having heard learned counsel and gone through the records I am persuaded to think that petitioner should not have such a impression. I do not find reason to interfere. Revision petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-