IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH MAY 2010 / 6TH JYAISHTA 1932 CRP.NO. 266 OF 2010() -------------------------------- AGAINST I.A. NOS.5039 AND 5041 OF 2008 IN OS.323/2005 OF PRL.SUB COURT,KOTTAYAM .................... REVN. PETITIONER(S): -------------------------------- M/S. ST. JUDE'S ENTERPRISES, REPRESENTED BY JOINT MANAGING PARTNER THOMAS MATHEW, S/O. LATE O.V. MATHEW, OTTATHAYIL HOUSE, PARAMPUZHA KARA, PERUMBAIKADU VILLAGE, KOTTAYAM. BY ADV. SRI.MATHEW JOHN (K) RESPONDENT(S): ------------------------- 1. T.A. ANTONY, S/O.T.C. ANTONY, THURUTHEL HOUSE, VADAVATHOOR KARA & POST VIJAYAPURAM VILLAGE, KOTTAYAM. 2. T.A. GEORGE @ GEORGE ANTONY, S/O. T.C. ANTONY, THURUTHEL HOUSE, CHENGALAM SOUTH P.O., THIRUVARPPU VILLAGE, KOTTAYAM. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== C.R.P. No.266 of 2010 ==================================== Dated this the 27th day of May, 2010 O R D E R This revision is in challenge of the common order passed by learned Principal Sub Judge, Kottayam on I.A. Nos.5039 and 5041 of 2008 whereby ex parte decree passed in favour of petitioner was set aside after condoning the delay of 1073 days. Learned counsel for petitioner contends that the order is erroneous and overlooking the factual situation which emerged in the case. According to the learned counsel there was due service of summons on respondents as provided under Order V Rule 15 of the Code of Civil Procedure (for short, “the Code”) in that, notice was served on mother of respondent No.1. It is also the contention of learned counsel that the very fact that in the application to condone delay, delay right from the date of ex parte order of decree is sought to be explained indicate that respondents were aware of the ex parte decree then itself. 2. Petitioner sued respondents for recovery of Rs.6,21,338/- allegedly due from the respondents as per a Chitty in which respondent No.1 had subscribed to 20 tickets. Respondents filed application to set aside the ex parte decree and to condone C.R.P. No.266 of 2010 -: 2 :- the delay of 1073 days stating that respondent No.1 was in the United Kingdom during the relevant time, summons was not served on him and that he had no information about the case or ex parte decree. Respondent No.2 is a cine actor and claimed that he is permanently residing in Bangalore and had not received summons in the case. It was only on 12.10.2008 when P.W.1, Power of Attorney of respondents noticed affixture of notice in the E.P., in the property of respondents that he learnt about the ex parte decree which was conveyed to the respondents. Thereon they filed the applications. Power of Attorney holder gave evidence as P.W.1 and stated to the case of respondents. Exhibit A1 is the Power of Attorney. That document was executed in United Kingdom. Learned Sub Judge observed from Ext.A1 that the said document indicated that during the time summons was attempted to be served on respondent No.1 he was in the United Kingdom. 3. It is true that going by the records as submitted by learned counsel summons on respondent No.1 was served through his mother and it has satisfied requirements of Order V Rule 15 of the Code. But fact remained that during the relevant time respondent No.1 was in United Kingdom. Evidence is that respondent No.2 was permanently residing at Bangalore. No C.R.P. No.266 of 2010 -: 3 :- contra evidence is given by the petitioner. Learned Sub Judge noticed that suit notice issued by the petitioner to the respondents was returned undelivered which also indicated that respondents were not available in the address stated in the notice (and in the plaint). These circumstances were taken into account by the learned Sub Judge to hold that on the facts and circumstances of the case sufficient cause is made out and that discretion has to be exercised in favour of respondents. The fact that Rs.6,21,338/- is claimed from the respondents was also taken note of by the learned Sub Judge. 4. According to the learned counsel respondents had even tried to negotiate with the petitioner before institution of the suit which also indicate that they were very much aware of institution of the suit. 5. Court below found that respondents have made out sufficient cause and exercised discretion in favour of respondents in the matter of condoning delay and setting aside the ex parte decree. Question is whether this Court should interfere with that finding and the discretion exercised by learned Sub Judge. This Court in revision is not sitting in appeal over the decision of the court below. It is only when there is patent illegality or perversity committed by the court below which required correction that C.R.P. No.266 of 2010 -: 4 :- revisional court should interfere. Revisional jurisdiction is supervisory in character to rectify patent mistakes or illegality committed by the court below. In this case I do not find any such patent illegality or perversity in the order of the court below holding that sufficient cause is made out and exercising discretion in favour of respondents giving them an opportunity to contest the plaint claim of Rs.6,21,338/- with future interest and costs. In Sreedhara Kurup v. Mickel (1968 KLT 599) this Court has laid down the principles which the subordinate courts have to bear in mind while considering such applications. Parties should be given an opportunity to contest the case on merit unless they are guilty of any contumacious conduct. Having regard to the circumstances of the case and the principles laid down in the above decision I do not find reason to interfere with the impugned order. But I direct the learned Principal Sub Judge to expedite the trial and disposal of the case. Civil Revision Petition is dismissed with the above direction. THOMAS P. JOSEPH, JUDGE. vsv