Rabiya v. Suresh

1 CRP.No.257 OF 2020 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 13TH DAY OF NOVEMBER 2020 / 22ND KARTHIKA, 1942** **CRP.No.257 OF 2020** **AGAINST THE ORDER/JUDGMENT IN CMA 39/2018 DATED 12-02-2020 OF ADDITIONAL DISTRICT JUDGE - IV, PALAKKAD** **AGAINST THE ORDER/JUDGMENT IN OS 280/2012 DATED 10-01-2018 OF PRINCIPAL SUB COURT, PALAKKAD** ## **REVISION PETITIONER/S:** **RABIYA AGED 58 YEARS W/O. IQBAL, PALAPOTTA, KARIYAMKODE, ANIKODE, PALAKKAD - 678 101. .** **BY ADVS. SRI.B.PREMNATH (E) SHRI.SARATH M.S.** ## **RESPONDENT/S:** **SURESH AGED 52 YEARS S/O. BALAN NAIR, DEVIKRIPA, AMBALAPARAMBU, KUNISSERI AMSOM, ALATHUR P. O., PALAKKAD - 678 541.** **THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 CRP.No.257 OF 2020 ## **C.S.DIAS, J.** ## **====================== CRP No.257 of 2020 ====================== Dated this the 13[th] day of November, 2020.** ## **ORDER** This civil revision petition is filed under Sec.115 of the Code of Civil Procedure seeking to set aside the judgment in CMA No.39/2018 of the Court of the District Judge, Palakkad and orders of the Court of the Subordinate Judge, Palakkad in I.A No.2336/2014 and I.A No.2337/2014 in O.S No.280/2012. 2. The revision petitioner is the appellant in CMA No.39/2018 and the defendant in O.S No.280/2012. The respondent in this revision petition was the respondent in the appeal and the plaintiff in the suit. 3. The case of the revision petitioner in the memorandum of civil revision petition, in brief, is that, the respondent had filed OS No.280/2012 seeking a decree for recovery of money on the strength of a pronote allegedly 3 CRP.No.257 OF 2020 executed by the revision petitioner. The suit was decreed exparte on 20.12.2012. The revision petitioner filed I.A No.2336/2014 invoking Order IX Rule 13 of the Code to set aside the ex-parte decree and I.A No.2337/2014 under Sec.5 of the Limitation Act, to condone the delay of 571 days. The revision petitioner was laid up due to a severe fracture on left tibia and arthritis on her left knee and she was under continuous medical treatment at Ganga Medical Centre and Hospitals Private Ltd, Coimbatore. She did not receive summons from the Trial Court regarding the pendency of the case. It was in the said circumstances that she did not appear before the Trial Court. However, the Trial Court without appreciating these aspects, passed the ex – parte decree. Immediately on receipt of the notice in EP 98/2013, the revision petitioner filed the above said applications to set aside the ex-parte decree and to condone the delay in filing the application. The revision petitioner also filed an affidavit in lieu of her chief-examination. The Trial Court without appreciating these aspects by a cryptic order dismissed the applications on the ground that the 4 CRP.No.257 OF 2020 revision petitioner had not shown sufficient cause and applications lacked merits. 4. The revision petitioner challenged the above said orders in CMA No.39/2018 before the Court of the District Judge, Palakkad. The Lower Appellate Court after considering the pleadings and materials on record, by the impugned judgment dismissed the appeal on the ground that the revision petitioner had offered no evidence to prove that she had entrusted any person to contest the suit on her behalf; that she had not examined any witness to prove that she had authorized an agent to appear on her behalf; that sole intention of the revision petitioner was to protract the final determination of the suit and that there was no bona fides in the claim put forth by the revision petitioner. 5. It is aggrieved by the concurrent findings by the court below that the revision petitioner has preferred this civil revision petition. 6. Even though notice was served on the respondents, there is no appearance for them. 7. Heard the learned counsel appearing for the 5 CRP.No.257 OF 2020 revision petitioner. 8. The law on setting aside ex parte decrees and condonation of delay is well laid in **Collector, Land Acquisition Anantnag and Anr vs. Ms.Katiji and Ors [AIR 1987 SC 1353]** and host of judicial pronouncements. The Hon'ble Supreme Court in the decision cited supra has held that in order to enable substantial justice to the parties, the expression 'sufficient cause' employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life purpose for the existence of the institution of Courts, and that it is common knowledge Courts have to take justifiably liberal approach in matters instituted in Court. 9. The above view has been reiterated by a recent Division Bench of this Court in **Sabu Joseph vs Kerala State Election Commission, Trivandrum [ 2020 KHC 238]** wherein it has been held that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred, for the 6 CRP.No.257 OF 2020 other side, cannot claim to have a vested right in injustice being done because of a non deliberate delay. A litigant does not stand to be benefited by resorting to delay. 10. It was the specific case of the revision petitioner that she was undergoing treatment at Ganga Medical Centre and Hospitals Private Ltd, Coimbatore having sustained a severe fracture on left tibia and having arthiritis on her left knee. She had filed a proof affidavit in lieu of chiefexamination before the court below. On going through the impugned award passed by the trial court it is seen that the trial court has not adverted to any of the contentions raised by the revision petitioner in the aforesaid applications. The Trial Court has perfunctorily dismissed the applications on the ground that the contentions put forth by the revision petitioner is merit less. The Trial Court has not assigned any reason to disbelieve the version put forth by the revision petitioner. Likewise, it is seen that no contra evidence has been let in by the respondents other than by the opposition made by the learned counsel appearing for the respondents, to discredit the version of the revision petitioner. 7 CRP.No.257 OF 2020 11. Unfortunately, the Lower Appellate Court had also followed the same path as that of the Trial Court. The Lower Appellate Court in paragraph 9 of the judgment has gone onto hold that the revision petitioner has not offerred any evidence to prove that she had entrusted an agent to contest the case. It was on this assumption, the Lower Appellate Court has confirmed findings of the trial court. 12. In view of the categoric declaration of law in the aforecited decisions and a plethora of authoritative precedents on the point, that a liberal approach has to be taken in matters for setting aside the ex parte decrees, so that cases be decided on merits rather on default/technicality, I am of the considered opinion that the revision petitioner has to be granted one more opportunity to contest the proceedings on merits. 13. True, going by the averments in the revision petition, I find that there is some laches on the part of the revision petitioner in not preferring the application filed under Order IX Rule 13 of the Code within the prescribed time. There was a delay of 571 days, which the petitioner 8 CRP.No.257 OF 2020 has explained by stating that she was undergoing treatment in a hospital due to fracture and arthritis. In view of the explanation that has been put forth by the revision petitioner in the memorandum of revision petition and also in an application filed before the trial court, I am of the considered opinion that the concurrent findings of the courts below can be set aside by putting the revision petitioner on terms. I am of the considered opinion that the revision petitioner can be directed to pay an amount of Rs.5,000/- as cost, to the respondent, which would do substantial justice. 14. In the said circumstances, this revision petition is allowed. The judgment dated 12.2.2020 of the Court of the District Judge, Palakkad in CMA 39/2018 and orders dated 10.1.2018 in I.A Nos 2336 and 2337 of 2014 in OS No.280/2012 of the Court of the Subordinate Judge, Palakkad are set aside, on condition that the revision petition deposits an amount of Rs.5,000/- (Rupees Five Thousand only) before the Trial Court within a period of 30 days from the date of receipt of a copy of this order. On 9 CRP.No.257 OF 2020 making such deposit, the court shall permit the respondent to withdraw the said amount and resurrect O.S 280/2012 and permit the revision petitioner to file her written statement and contest the proceedings, in accordance with law. Taking into consideration the fact that the suit is of the year 2012, I direct the Trial Court to consider and dispose of the suit as expeditiously as possible. SKS/13.11.2020 **Sd/JUDGE** **C.S.DIAS**