ALOSHIOUS v. S.H. ANI

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.SOMARAJAN THURSDAY, THE 1ST DAY OF DECEMBER 2016/10TH AGRAHAYANA, 1938 CRP.No. 492 of 2014 (D) ------------------------------AGAINST THE JUDGMENT IN CMA 21/2014 of D.C & SESSIONS COURT, TRIVANDRUM, DATED 12.06.2014 AGAINST THE ORDER IN OS 1045/2002 of PRL.M.C.,TRIVANDRUM DATED 07.02.2014 REVISION PETITIONER/APPELLANT: - ------------------------------------------------------- ALOSHIOUS, S/O. LOIUS, DHANYA PANNIYODU, KATTAKADA, THIRUVANANTHAPURAM. BY ADV. SRI.M.R.SARIN RESPONDENT/RESPONDENT: - --------------------------------------------- S.H.ANI, S/O. HRISHIKENAN PANKIM, MANACAUD, THIRUVANANTHAPURAM-695006. R1 BY ADV. SRI.G.SUDHEER THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01-12-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DMR/- ## **P. SOMARAJAN, J** ---------------------------------------------------- ## **CRP No. 492 of 2014** ---------------------------------------------------- Dated this the 01[st] day of December, 2016 ## **ORDER** This Revision is filed against the judgment in CMA No.21/14 of the District Court, Thiruvananthapuram dated 12.06.2014. 2. A suit in O.S. No.1045/2002 was filed before the Munsiff Court, Thiruvananthapuram for recovery of money based on a promissory note. The defendant set _ex parte_ in that suit after filing his written statement, which has resulted in an _ex parte_ decree dated 20.03.2003. Consequent to the passing of _ex parte_ decree, the defendant filed I.A. No.4171/2003 for setting aside the _ex parte_ decree, which was also ended in dismissal for default on 25.09.2003. Thereafter, after a period of seven years, the defendant filed another I.A. No.1797/2010 and I.A. No.1798/2010 for setting aside the very same _ex parte_ decree and also for condoning a delay of 2634 days. Both the applications were dismissed by the Trial Court on the reason that the earlier application for the very same purpose and relief was dismissed and hence the second CRP No. 492 of 2014 2 application for the very same relief and purpose would not stand in the eye of law. The matter was went in appeal in CMA No.43/2011, wherein also the view taken by the lower court was upheld by dismissing the appeal. It is thereafter, the revision petitioner, who is the defendant in the original suit, filed I.A. No.3524/2013 and I.A. No.3525/2013 for restoring the first application submitted for setting aside the _ex parte_ decree in I.A. No.4171/2003. Among these two I.A's, I.A. No.3525/2013 was filed for condoning a delay of 9 days, in preferring the application in I.A. No.3524/2013 for restoring the application which was dismissed for default in I.A. No.4171/2003. That application was also dismissed by the trial court, against which CMA No.21/14 was filed before the District Court, Thiruvananthapuram. The learned District Judge, on hearing both the parties, dismissed the C.M.A. by its judgment dated 12.06.2014, against which this revision is filed. 3. Heard the learned counsel for the petitioner as well as the learned counsel appearing on behalf of the respondent. CRP No. 492 of 2014 3 4. It is an admitted case of both sides that an _ex parte_ decree was passed in O.S. No.1045/2002 as early as on 20.03.2003 and that an application for setting aside the _ex parte_ decree was also ended in dismissal. It is thereafter that I.A. Nos.1797/2010 & 1798/2010 were filed for setting aside the _ex parte_ decree and also for condoning the delay of 2634 days. Those applications were dismissed by the trial court on the ground that for the very same purpose an earlier application in I.A. No.4171/2003 was filed, which has ended in dismissal for default and as such the second application for the said purpose would not stand in the eye of law, against which CMA No.43/2011 was filed before the District Court which has also ended in dismissal. It is after the dismissal of CMA 43/2011 the petitioner/defendant opted to file another applications, I.A. Nos.3524/2013 and 3525/2013, for restoring the first application (earlier application in I.A. No.4171/2003), which was dismissed for default on 25.09.2003. The prayer in the delay condonation application is confined only to 9 days, CRP No. 492 of 2014 4 though the delay comes to more than 10 years. The learned counsel appearing for the revision petitioner attempted to canvass the attention of this court into the decisions drawn in **State of Kerala v. Krishna Kurup Madhava Kurup** [1971 KHC 319] and the decision drawn in **P. Kavita Murthy v. P. Venkata Raman Murthy** reported in 2004 KHC 2704, **Basheer M. Picha and Another v. Indian Bank, Shanmugham Road Branch, Ernakulam** [2013 (2) KHC 425], **Mata Din v. A. Narayanan** [1969 KHC 573] and took support to his argument that legal proceeding initiated before a Court having no jurisdiction over the matter under a _bonafide_ mistake would be sufficient to attract Section 14 of the Limitation Act. No application filed by the petitioner to condone the period of pendency legal proceeding, which was initiated under a _bonafide_ mistake. What is included in the application and the relief sought therein is confined only to 9 days delay. The attempt of the learned counsel is to put the entire blame over the shoulder of counsel who appeared for and on behalf of the defendant/petitioner in CRP No. 492 of 2014 5 the lower court. The petitioner has categorically admitted that he was having direct knowledge with respect to the passing of decree as early as in 2003. At this stage, Section 3 of the Transfer of Property Act assumes importance, wherein the interpretation gives to the expression “when a person is said to have notice” squarely applicable in the case in hand which would sufficient enough to induct gross negligence in making a search in time within its preview. As discussed earlier, the delay comes to more than ten years. There is no prayer to condone such a huge delay of ten years, but the prayer is only for condoning a delay of 9 days. Section 14 of the Limitation Act can be applied when there is an application for condoning the delay of the period by which the party has _bonafidely_ instituted and proceeded with a proceeding in a Court having no jurisdiction over the matter. In the particular case in hand, no such relief was sought. The relief sought is only with respect to 9 days and not for more than 10 years. 5. Another argument advanced by the learned counsel that the mistake on the part of the counsel has to CRP No. 492 of 2014 6 be viewed liberally and it shall not be used for defeating the genuine rights of the parties. On that count also, I could not find any merit in the case advanced by the learned counsel. Though he took support from the decision rendered in **Kavita Murthy** _(supra)_ regarding the omission or mistake in the calculation in the present case, the mistake over the calculation, if any, committed by the concerned counsel by calculating only 9 days instead of more than 10 years, cannot be construed at any stretch of imagination either as a mistake in the calculation or omission in the calculation. So, the decision rendered in **Kavita Murthy** _(supra)_ will not give much assistance to the case advanced by the petitioner herein. The fact that the defendant went away from the suit and kept mum for a long period of seven years and opted to file a second application for restoring the application which was filed for setting aside the decree would show the gross negligence on the part of the petitioner, especially in a suit filed for recovery of money. The application submitted for condoning a mere 9 days delay would definitely tell upon CRP No. 492 of 2014 7 what is behind it and in what manner the issue was handled by the petitioner herein. In any view of the matter, there is no sufficient reason, much less any reason to exercise revisional power by this Court and hence the revision petition deserves only dismissal. In the result, revision petition is dismissed. No cost. ## **P. SOMARAJAN JUDGE** DMR/-