BALAN v. MOHANAN

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **TUESDAY, THE 12TH DAY OF FEBRUARY 2013/23RD MAGHA 1934** ## **OP(C).No. 95 of 2012 (O)** **-----------------------AGAINST THE ORDER/JUDGMENT IN CMA.NO.23/2011 OF ADDL.SESSIONS COURT I, MAVELIKKARA DATED 3110/2011** **...... AGAINST THE ORDER/JUDGMENT IN CMA.NO.24/2011 OF ADDL.SESSIONS COURT-I,MAVELIKKARA DATED 31/10/2011** **.......** ## **PETITIONER(S):APPELLANT/PETITIONER:** **----------------------------------------------------------------** **BALAN AGED 40 YEARS DRIVER, KANDISSERIL VEEDU, THRIPPERUMTHURA SOUTH THRIPPERUMTHURA VILLAGE, CHENNITHALA P.O. ALAPPUZHA - 690 105.** **BY ADVS.SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR SRI.K.JAGADEESH** ## **RESPONDENT(S):RESPONDENT/RESPONDENT:** **----------------------------------------------------------------------** **MOHANAN, REMALAYAM, THRIPPERUMTHURA SOUTH, THRIPPERUMTHURA VILLAGE, CHENNITHALA P.O., ALAPPUZHA-690 105.** **BY ADVS. SRI.V. MADHUSUDHANAN SRI.T. ISSAC** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 12-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **OP(C) NO.95/2012 O** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1. TRUE PHOTO COPY OF THE ORDER IN IA NO.1102/2010 IN OS NO.50/2008 OF THE MUNSIFF COURT, MAVELIKKARA, DATED 14/1/2011.** **EXHIBIT P2. THE TRUE PHOTO COPY OF THE MEMORANDUM OF APPEAL IN CMA NO.23/2011.** **EXHIBIT P3. THE TRUE PHOTO COPY OF THE MEMORANDUM OF APPEAL IN CMA 24/2011.** **EXHIBIT P4. THE TRUE PHOTO COPY OF THE COMMON JUDGMENT IN CMA NO.23/2011 AND CMA 24/2011 OF THE ADDITIONAL DISTRICT COURT-1, MAVELIKKARA.** ## **RESPONDENTS' EXHIBITS:** ## **N I L** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **S.S.SATHEESACHANDRAN,J ----------------------------------------O.P(C). No. 95 OF 2012 -----------------------------------------Dated this the 12[th] day of February, 2013** ## **J U D G M E N T** Petitioner is the plaintiff in a Suit for Injunction. In that suit resisting his claim the defendant raised a counter claim of injunction. Pending suit a reference was made to adalath, but, no settlement was reached. When the case was posted in the list for trial, plaintiff remained absent, and, the defendant lead evidence in support of his counter claim. Suit of the plaintiff was dismissed for default, and, the counter claim of the defendant was granted passing an ex parte decree. At the stage when execution steps were taken by the defendant on the ex parte decree, plaintiff moved two applications one under order IX Rule 9 of Civil Procedure Code to restore his suit dismissed for default and the other to set aside the ex parte decree passed in favour of the defendant allowing his counter claim. In respect of both applications referred to above, he filed a common application for condoning the delay of 230 days in moving such applications. Petitions filed by him for restoration of his suit and setting aside the ex parte decree remained unnumbered. His application for O.P(C). No. 95 OF 2012 2 condonation of delay filed in common in both petitions was numbered in which evidence was taken and that lead to Ext.P1 order by which the learned Munsiff holding that sufficient cause has not been made out for condoning delay turned down that application. In Ext P1 order he also passed an order to that effect that unnumbered applications for setting aside ex parte decree and for restoration of the suit were also dismissed. Producing copy of Ext.P1 order, separately, plaintiff preferred two appeals over the dismissal of his applications for restoration of the suit and setting aside the ex parte decree, challenging the finding entered by munsiff that no sufficient cause had been made for condoning the delay in moving such applications. Learned additional District Judge by Ext.P4 common judgment dismissed both C.M. Appeals holding that the appeals filed against Ext.P1 order are not maintainable, but, with liberty to the appellant to file fresh appeal rectifying the defects. Ext.P4 common judgment is challenged in this original petitions. 2. Learned counsel for petitioner has made available the ex parte decree passed in the suit upholding the counter claim of the respondent/defendant. Perusal of the decree would show that suit of the plaintiff was dismissed for default on 9.12.2009 and, later, adjudication over the counter claim of the defendant O.P(C). No. 95 OF 2012 3 continued and a decree in his favour was passed on 11.12.2009. When that be the case, a common application moved by the petitioner, to condone the delay in filing his application for setting aside the ex parte decree passed in favour of the defendant and also for restoration of his suit dismissed for default, as was done, could not have been entertained since, the dismissal of suit and passing of ex parte decree in favour of defendant occurred on different dates. Even otherwise, it is advisable to file separate applications for condoning delay, when independent consideration over applications for distinct and different reliefs are involved. At this stage, knowing the insurmountable difficulty in banking upon the petition for condonation of delay in common to both applications, learned counsel for petitioner submitted that he is pressing for consideration of that application only for setting aside ex parte decree upholding the counter claim of the defendant, and he is not pressing his application for restoring the suit dismissed for default. Application moved for setting aside the ex parte decree upholding the counter claim of defendant alone be considered with respect to challenge raised against Ext.P4 judgment is the submission of the counsel. 3. Taking note of the submissions made as above by the counsel I have examined whether interference with Ext.P1 order O.P(C). No. 95 OF 2012 4 passed by the learned Munsiff and Ext.P4 common judgment rendered by the learned Additional District Judge is called for. After holding that no appeal will lie against that Ext.P1 order learned Additional District Judge has dismissed the appeals on merits, but, providing an opportunity to petitioner to prefer appeal after curing defects within the time fixed. That decision is erroneous and unsustainable. Petitions filed to restore the suit dismissed for default, and also setting aside the ex parte decree passed in favour of defendant remained unnumbered, and what was considered by learned munsiff was only an application for condoning the delay. Rejection of that application has lead to rejection of the numbered petitions as well since no separate orders thereof was called for. When that to be so, petitioner could have filed only an appeal producing a copy of Ext.P1 order, which was passed in his application moved for condoning the delay whereunder learned Munsiff has specifically stated that consequent to such order the unnumbered petitions filed by him for restoring the suit and also setting aside the ex parte decree shall stand dismissed. 4. Ext. P4 order, when his applications moved, separately, for restoration and setting aside the ex parte decree stood rejected, appeals filed by him are perfectly maintainable. That O.P(C). No. 95 OF 2012 5 has been so held by this court in **Lakshmykutty Panickathi vs Bhargavi Panickathi, [1987(2) KLT 562],** which, however had been wrongly understood by the learned Additional District Judge, who has relied on that decision for sustaining the erroneous view taken that as against the rejection of the application for condonation of delay no appeal will lie. This court has held in the above case that the words rejecting an application is comprehensive enough to include dismissal for default or rejection in any other situation whatsoever. No separate orders on the applications for restoring the suit and setting aside ex parte decree was warranted when such applications remained unnumbered and further where learned munsiff in Ext.P1 order has entered a finding that application for condonation of delay was not sustainable. So much so, the appeal preferred by petitioner producing copy of Ext.P1 order, when the court below has not passed any order on his application for restoring the suit and setting aside the ex parte decree, and, more so ordered for dismissal of such applications in Ext.P1 order itself, should have been considered on its merits, and, not dismissed on any technical ground. Now that the learned counsel has stated that he is not pressing his petition for restoring his suit what remains to be considered only the challenge against Ext.P1 Order with O.P(C). No. 95 OF 2012 6 respect to dismissal of his application moved for setting aside ex parte decree granted in favour of the defendant. _The appeal preferred by him as C.M.A 24 of 2011 against Ext.P1 order has to be considered on its merits with reference to the question whether petitioner has made out sufficient cause for condoning the delay to set aside the ex parte decree. Direction given in Ext.P4 judgment to petitioner to file fresh appeals, after curing defects, is devoid of any merit when petitions filed before the court below remained unnumbered and no separate order had been passed in for dismissing such applications. Learned Additional Judge is directed to take back C.M.A.24 of 2011 on his file and dispose the same on its merits. Since respondent has not entered appearance before this court on taking back the appeal. The court below shall give notice to respondents in such appeal. Dismissal of C.M.A. No.23 of 2011 under Ext.P4 judgment shall be treated as final, and no further proceedings there of is called for._ Original Petition is disposed of. **Sd/-** ## **S.S.SATHEESACHANDRAN JUDGE** /True Copy/ P.A to Judge skv