IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 27TH AUGUST 2008 / 5TH BHADRA 1930 CRP.No. 1494 of 2004() ----------------------------------- (O.S.NO.110/2000 OF MUNSIFF'S COURT, PUNALUR) PETITIONER: PLAINTIFF: --------------------------------------- *1. S. MADHAVAN, S/O. SANKU, PUTHENVILA VEEDU, CHOZHIYAKODU KARA, KULATHUPUZHA VILLAGE. ( D I E D). *THE SOLE PETITIONER DIED. ADDL.PETITIONERS IMPLEADED: 2. NALINAKSHY,AGED 63, W/O.LATE MADHAVAN, PUTHENVILA HOUSE, CHOZHIYAKOTTU MURI, KULATHURPUZHA VILLAGE. 3. SUDEVAN, AGED 47, S/O.LATE MADHAVAN, PUTHENVILA HOUSE, CHOZHIYAKOTTU MURI, KULATHURPUZHA VILLAGE. 4. JAYAKUMAR, AGED 45, S/O.LATE MADHAVAN, PUTHENVILA HOUSE, CHOZHIYAKOTTU MURI, KULATHURPUZHA VILLAGE. 5. SINDHU, AGED 43, D/O.LATE MADHAVAN, RS BHAVAN, ONTHUPACHA, PUTHENVILA HOUSE, CHOZHIYAKOTTU MURI, KULATHURPUZHA VILLAGE. (*BEING THE LEGAL REPRESENTATIVES ARE IMPLEADED AS ADDL.PETITIONERS 2 TO 5 VIDE ORDER DTD. 22/08/2008 IN I.A.1702/2008) BY ADV. SRI.KURIAKOSE PETER.T Kss ..2/- ...2..... C.R.P.NO.1494/2004 RESPONDENTS: DEFENDANTS 1 TO 4: ---------------------------------------------------------- 1. SASIKALA THANKACHI, D/O. DANIEL ALEXANDER, CHARUVILA PUTHEN VEEDU, CHOZHIYAKODU KARA, KULATHUPUZHA VILLAGE, NOW RESIDING AT CHEMBINAL HOUSE, SASTHAMKOTTA, MYNAGAPPALLY VILLAGE. 2. DEVAKI, SUNIL BHAVAN, THOTTINUVADAKU KARAYIL, CHAVARA VILLAGE. 3. RADHAKRISHNAN, S/O. KUNJU KUNJU, THEVANATHU VEEDU, PUTHUKATTU MURI, CHAVARA VILLAGE. 4. RADHA, D/O. KUNJU KUNJU, REMYA BHAVAN, EDAPPARAYAM KARA, SOORANADU VADAKKU VILLAGE, KUNNATHOOR. ADV. SRI.VARGHESE C.KURIAKOSE FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M. SASIDHARAN NAMBIAR, J. ------------------------------------------ C.R.P. NO. 1494 OF 2004 ------------------------------------------ Dated this the 27th day of August, 2008 O R D E R Petitioner is the plaintiff and first respondent the first defendant in O.S.110 of 2000 on the file of Munsiff Court, Punalur. An exparte decree was passed in that suit. First respondent filed I.A. 30 of 2004, an application under Rule 13 of Order IX of Code of Civil Procedure, to set aside the exparte decree and I.A.31 of 2004 to condone the delay under Section 5 of Limitation Act. Learned Munsiff, under separate order, allowed I.A.31 of 2004. As per the impugned order dated 2.11.2004 learned Munsiff, finding that there is sufficient cause for the petitioner, for her non appearance when the suit was decreed exparte, allowed the application on payment of cost of Rs.500/-. The order in I.A.30 of 2004 is challenged in this petition filed under Section 115 of Code of Civil Procedure. 2. Learned counsel appearing for petitioner and first respondent were heard. 3. The argument of the learned counsel appearing for CRP.1494/04 2 petitioner is that under Rule 13 of Order IX of Code of Civil Procedure it is imperative for the Court to find that first respondent was prevented for sufficient cause from appearing before the Court and the exparte decree is to be set aside and first respondent did not establish sufficient cause and therefore the order is illegal. The learned counsel also argued that petitioner was represented through a counsel who subsequently reported no instructions and in such circumstances petitioner cannot be heard to contend hat she was unaware of the decree in the suit and therefore learned Munsiff was not justified in allowing the application. 4. As the petitioner did not challenge the order passed in I.A.31 of 2004 in this petition we are not concerned with the question whether petitioner was aware of the decree before application was filed or before expiry of the period provided for filing an application under Rule 13 of Order IX of Code of Civil Procedure. The order shows that there is sufficient cause for absence of the petitioner when the suit was decreed exparte. Learned Munsiff appreciated the evidence of PW1 and found that there is sufficient cause. Though PW1 was cross-examined she had explained the reason why the suit could not be CRP.1494/04 3 prosecuted, petitioner did not adduce any contra evidence. Learned Munsiff accepted the evidence of PW1 and found that there was sufficient cause for non appearance of the respondent when the case was decreed exparte. Exercising the revisional jurisdiction, I do not find any illegality or irregularity in the order warranting interference. By the order learned Munsiff has only allowed first respondent to have a decision on merit. In such circumstances I do not find any reason to interfere with the order. Revision petition is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-