High Court of KeralaSingle Judge2021-07-28Dismissed

R.S. Soman v. Anil Kumar Mangalath

Case / Petition Number:CRP No. 625 of 2018

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.G. Arun
Judgment Date: 2021-07-28
Court Decision / Holding: The civil revision petition is dismissed.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

R.S. Soman

Respondents

ANIL KUMAR MANGALATH

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Pratheesh P.
• Smt. Reny Anto

Counsels for Respondents

• H. Ramanan

Case Synopsis & Summary

This Civil Revision Petition challenges an ex-parte decree in O.S. No.333 of 2014 of the Additional Munsiff Court, Kollam, wherein the respondent sued for recovery of Rs 3,87,608 and the court decreed ex parte on 27 October 2014. The revision petitioner (defendant) moved to set aside the ex-parte decree via I.A. No.1974 of 2016 and sought condonation of delay through I.A. No.1973 of 2016; both petitions were dismissed. A review petition (I.A. No.3170 of 2016) followed but was also dismissed, after which the CMA was filed before the District Court and later withdrawn after about two years. The revision petition is filed with a delay of 545 days. The learned counsel for the petitioner argued that the lower court failed to consider explanations offered for the delay and the petitions to set aside the ex-parte decree, and even the review petition, had reasons that were not adequately stated. The respondent contends that the petitioner engaged in dilatory tactics, delaying the fruits of the decree, and that no cogent justification existed for condonation of delay or setting aside the ex-parte decree. The High Court notes deliberate and wilful laches, and while liberal relief is recognized in some contexts, it cannot be extended to those who protract proceedings. Citing doctrinal positions that distinguish inordinate delay from short delays and emphasize prejudice to the opposite party, the court holds that liberal relief is unwarranted. Consequently, the civil revision petition is dismissed.

Legal Doctrines & Maxims

Liberal approach in setting aside ex-parte decrees generally allowed to enable adjudication on merits, but not for deliberate laches
Doctrine of prejudice in cases of inordinate delay
Distinction between inordinate delay and delay of short duration
In cases of deliberate and wilful laches, liberal relief cannot be granted

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contends that the lower court did not consider the explanations offered for the delay in filing the condonation application and for setting aside the ex-parte decree; even the review petition was cryptically disposed of, and the delay ought to be condoned to permit adjudication on merits. It is urged that a liberal approach is generally adopted to set aside ex-parte decrees to avoid denying a party a hearing on the merits, and that the court should evaluate whether there has been negligence rather than deliberate default.

Contentions of Respondents

The respondent argues that the petitioner engaged in deliberate dilatory tactics, delaying the decree’s fruits. There was no cogent reason for condoning the delay or setting aside the ex-parte decree. After unavailing attempts to obtain relief via a review and prolonged CMA proceedings, the revision petition was filed, indicating calculated protraction of the proceedings to the prejudice of the respondent. The respondent urges adherence to strict standards and rejection of liberal relief where wilful laches is evident.

Cited Precedents (6)

Case Name	Citation	Treatment	Explanation
Robin Thapa v. Rohit Dora	2019(3)KLT 525 (SC)	Distinguished	Cited by the petitioner to advocate liberal setting-aside of ex-parte decrees; the court held such decisions have no application given deliberate laches.
John Simon v. T.H.Mohammed Kunju	2007(2) KHC 925	Distinguished	Proposed liberal relief in setting aside ex-parte decrees; not applicable due to delay and laches.
Varghese v. Sherif	2005 KHC 2104	Distinguished	Authorities cited for liberal relief; court distinguished them on facts involving laches.
M.K.Prasad v. P.Arumugam	2001 KHC 1132	Distinguished	Judicial stance on liberal relief; distinguished in the present case for deliberate laches.
G.P.Srivastava v.R.K.Raizada and others	2000 KHC 1023	Distinguished	Earlier liberal-relief authorities; distinguished due to petitioner's deliberate conduct.
Sha Bhattacharjee v. Raghunathpur Nafar Academy	(2013) 12 SCC 649	Positive	Affirms distinction between inordinate delay and short delay; supports prejudice-based approach in case of inordinate delay; used to frame the court’s stance on delay and prejudice.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 28[TH] DAY OF JULY 2021 / 6TH SRAVANA, 1943 CRP NO. 625 OF 2018** **OS 333/2014 OF ADDITIONAL MUNSIFF COURT, KOLLAM** ## **REVISION PETITIONER/S:** R.S.SOMAN AGED 58 YEARS S/O. SANKARA PILLAI, AGED 58 YEARS, SUMAN NIVAS, KADAPPAKKADA, KOLLAM - 691 008. BY ADVS. SRI.PRATHEESH.P SMT.RENY ANTO ## **RESPONDENT/S:** ANIL KUMAR MANGALATH, PERAYAM, MULAVANA, KOLLAM - 691 503. BY ADV H.RAMANAN THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08.07.2021, THE COURT ON 28.07.2021, DELIVERED THE FOLLOWING: **CRP No.625 of 2018** 2 ## **ORDER** Dated this the 28[th] day of July **,** 2021 **The revision petitioner is the defendant in O.S.No.333 of 2014 on the files of the Additional Munsiff Court, Kollam. The respondent filed the suit seeking recovery of an amount of Rs.3,87,608/-. The suit was decreed ex-parte on 27.10.2014. The revision petitioner filed I.A.No.1974 of 2016 for setting aside the ex-parte decree and I.A.No.1973 of 2016, to condone the delay in filing the petition. The said applications were also dismissed and the revision petitioner preferred I.A.No.3170 of 2016 seeking to review the order passed in the application for setting aside the ex-parte decree. The court below having rejected the prayer for review, the revision petitioner has preferred this civil revision petition.** **CRP No.625 of 2018** 3 **2. Learned Counsel for the revision** **petitioner contended that the application for condonation of delay and consequently, the petition seeking to set aside the ex-parte decree were dismissed, without considering the explanation offered by the revision petitioner. Even though this aspect was pointed out in the review petition, the court below dismissed the review petition also.** **3. The learned Counsel for the respondent submitted that, due to the dilatory tactics adopted by the revision petitioner, the respondent is yet to get the fruits of the decree rendered on 27.10.2014. According to the learned Counsel, no cogent reason was stated in the petition seeking condonation of delay or in the petition for setting aside the ex-parte decree. On the interlocutory applications being dismissed, instead of availing the proper remedy, the** **CRP No.625 of 2018** 4 **revision petitioner chose to file review petition before the same court. After dismissal of the review petition, CMA was filed before the District Court, which was finally withdrawn after two years. Thereafter, this civil revision petition is filed with delay of 545 days. It is contended that, having failed to give any cogent and acceptable reason for condoning the delay and setting aside the ex-parte decree, the revision petitioner cannot find fault with the court for having passed a cryptic order. Further, no error apparent on the face of the orders passed in the petitions for condonation of delay and setting aside the ex-parte decree was pointed out and hence, the court below was justified in dismissing the review petition.** **4. Heard Sri.Pratheesh P., learned Counsel for the revision petitioner and Sri.H.Ramanan, learned Counsel for the respondent.** **CRP No.625 of 2018** 5 **5. Learned Counsel for the revision petitioner assailed the impugned order mainly on the ground of absence of reasons. Relying on the decisions in** _**Robin Thapa v. Rohit Dora [2019(3)KLT 525 (SC)], John Simon v. T.H.Mohammed Kunju [2007(2) KHC 925], Varghese v. Sherif [2005 KHC 2104], M.K.Prasad v. P.Arumugam [2001 KHC 1132] and G.P.Srivastava v.R.K.Raizada and others [2000 KHC 1023]**_ **, it is contended that a liberal approach ought to be taken in the matter of setting aside an ex-parte decree and ordinarily, a litigation should be adjudicated on merits and not terminated by default.** **6. Learned Counsel for the revision petitioner would contend that the aforementioned decisions have no application to the case at hand, since a person guilty of gross negligence and deliberate laches is not entitled for any relief. A liberal approach in such cases will be to the** **CRP No.625 of 2018** 6 ## **prejudice of the diligent opposite party.** **7. It is true that a liberal approach is generally taken in the matter of setting aside of ex-parte decrees so that, the parties are given opportunity to contest the case on merits. At the same time, such liberal approach cannot be applied in the case of persons guilty of deliberate and wilful laches. As held by the Honourable Supreme Court in** _**[ Sha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649]**_ **, there is a clear distinction between inordinate delay and a delay of short duration or few days. To the former, the doctrine of prejudice is attracted whereas to the latter, it may not be attracted. That apart, inordinate delay warrants strict approach whereas delay of short duration calls for a liberal delineation.** **8. The facts of the instant case shows that the ex-parte decree was passed on 27.10.2014 and** **CRP No.625 of 2018** 7 **the petition seeking to set aside the ex-parte decree was filed much later. No acceptable reason for the delay having been stated, the application for condonation of delay and consequently, the petition for setting aside the ex-parte decree were dismissed. The revision petitioner sought review of the orders, without pointing out any error in the face of the orders. During the pendency of that application, the revision petitioner challenged the very same orders in appeal before the District Court. After almost two years of filing the appeal, the revision petitioner withdrew the appeal and proceeded with the review petition. The review petition having been dismissed, the revision petitioner is before this Court. The aforementioned facts would reveal a deliberate attempt on the part of the revision petitioner to protract the proceedings, to the prejudice of the respondent. In the aforesaid** **CRP No.625 of 2018** 8 **background, this Court is not expected to adopt a liberal approach and set aside the order in the review petition.** **9. As regards the contention that the impugned order is bad for absence of reasons, the order under challenge being an order passed in a review petition and the revision petitioner having failed to point out any apparent error on the face of the order sought to be reviewed, the court cannot be expected to pass a lengthy order.** **In the result, the civil revision petition is dismissed.** **V.G.ARUN JUDGE** Scl/