Thara S.L. v. Sajeena and Abdul Rahim

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY,THE 17TH DAY OF OCTOBER 2018 / 25TH ASWINA, 1940** **CRP.No. 50 of 2014** **AGAINST THE ORDER/JUDGMENT IN CMA 19/2010 of SUB COURT, NEDUMANGAD DATED 03-10-2013** **AGAINST THE ORDER/JUDGMENT IN OS 688/2002 of ADDL.MUNSIFF COURT,NEDUMANGAD DATED 19-06-2010** ## **REVISION PETITIONER/S:** **THARA S.L. AGED 35 YEARS D/O.SHANMUGHAM, KRISHNA COTTAGE, VEYLOOR MURI, MURUKKUMPUZHA, MUNDAKKAL VILLAGE, CHIRAYINKEEZH, NOW R/A.SAMEER GARDENS, NAVAIKKULAM.** **BY ADVS. SRI.G.S.REGHUNATH SRI.A.S.SHAMMY RAJ SRI.K.RAJESH KANNAN SRI.P.SHANES METHAR** ## **RESPONDENT/S:** **1 SAJEENA D/O.LAILA BEEVI,AZEERN MANZIL, KEEZHAIKKONAM, NELLANAD VILLAGE, TRIVANDRUM-695541** **2 ABDUL RAHIM S/O.MOHD. KANNE, SALMA MANZIL, VENJARAMOODU, NELLANAD VILLAGE, TRIVANDRUM-695541** **BY ADVS. SRI.T.KRISHNANUNNI (SR.) SRI.SAJU.S.A** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30.07.2018, THE COURT ON 17.10.2018 PASSED THE FOLLOWING:** _CRP 50/2014_ 2 ## **O R D E R** The additional 2[nd] defendant in O.S.No.688/2002 on the file of the Munsiff's Court, Nedumangad has filed this Revision Petition challenging the order dated 03.10.2013 of the Sub Court, Nedumangad in C.M.A.No.19/2010. The facts in brief are thus: The 1[st] respondent filed O.S.No.688/2002 for an injunction restraining the 2[nd] respondent in this petition from trespassing into the plaint A-Schedule property, destroying its boundaries or committing any waste therein. Injunction was also sought to restrain the defendant from causing any hindrance or obstruction to the plaintiff using B-Schedule for ingress and egress to A-Schedule property having an extent of 13 cents in R.S.No.1544/1 of Nellanad Village, from VenjaramooduKilimanoor Road, which passes along the northern side of the 2[nd] respondent's property and has a width of one metre and a length of 55 metres. _CRP 50/2014_ 3 2. The 1[st] defendant filed a written statement contending that B-Schedule pathway as alleged, is not in existence. He was the owner in possession of 55.59 Ares of land lying on the south of A-Schedule property, and the property of the Local Panchayat used as a market place, lying on the west of the A-Schedule property. 3. Despite filing a written statement challenging the right of the plaintiff, the 2[nd] respondent did not contest the suit, and sold the property to the revision petitioner, who was impleaded as additional 2[nd] defendant in the suit. The revision petitioner met the 1[st] defendant and enquired about the details of the pending suit and she was made to believe that the suit is not concerning the property sold to her and that he has already filed a detailed written statement, and would contest the suit. On the assurance given by him that the suit would be properly defended, the revision petitioner, however, engaged a lawyer to defend herself in the suit. 4. The petitioner who was undergoing treatment for infertility and the consequential stress, could not advice her Counsel appropriately. Thereafter, petitioner _CRP 50/2014_ 4 delivered her first born child in December, 2005 and soon become pregnant again and in the second time she delivered triplets in December, 2006. Accouchement and the burden to fend for her four infants took a toll of her physical as well as a mental condition, preventing her from paying due attention to the pending litigation or contact her Counsel to ascertain the progress made in the suit. The 1[st] defendant also did not appear, as a result of which, the suit was dismissed exparte on 09.06.2005. The revision petitioner was totally in dark about the dismissal of the suit. Due to the financial difficulties, the revision petitioner also sold the property to Shylaja Nair and Sreekantan Nair. The plaintiff in the suit attempted to trespass into the property and therefore the said Shylaja Nair and her husband filed O.S.No.731/2008 for an injunction against him. In that suit, it was revealed that an exparte decree was obtained in O.S.No.688/2002 against the predecessors-in-interest of Shyjala Nair and her husband. Shylaja Nair and her husband conveyed this fact to the petitioner. Under the circumstances, the petitioner was _CRP 50/2014_ 5 bound to protect the rights of her vendees and realised that the suit was decreed exparte for her non-appearance. She filed I.A.Nos.5048 & 5049 of 2009 for condoning a delay of 1601 days, and to get the exparte decree against her set aside. The applications were contested and the petitioner let in evidence was PW1, and produced documents to satisfy the court about the reasons for her not appearing to contest the suit. The I.As. were dismissed. The petitioner filed C.M.A.No.19/2010 challenging the dismissal of the applications to set the exparte decree and condonation of delay. The Appellate Court refused to interfere. It is pointed out that O.S. No.688/2002 is a suit, which was decreed exparte, after practicing fraud on the defendant and the Court. A verification of the B-Schedule property as described in the plaint would indicate that the property is outside the boundaries of the defendants' property and is situated in the property belonging to the Panchayat lying on the north of the defendants' property. The plaintiff has not pleaded a case of easement and the trial Court should not have decreed the suit without proper evidence _CRP 50/2014_ 6 on record, despite the fact that the defendants were exparte. 5. Since irreparable injury and hardship is caused to the revision petitioner and her successor-in-interest, this Revision Petition is filed seeking this Court's interference for allowing the applications to set aside the exparte decree after condoning the delay and setting aside the order of dismissal of the applications, which was confirmed in appeal by the Sub Court. 6. The plaintiff, who is 1[st] respondent herein, appeared and contended that the revision petitioner has no right or possession over the disputed property at present since she has already alienated the property. There is contumacious delay in filing the application to set aside the exparte decree. The allegation that the plaintiff was not financially, physically or mentally sound, is also not proved. The petitioner has suppressed material facts with the intention to protract the litigation. 7. The learned Munsiff, considering the evidence on record, observed that the revision petitioner was set _CRP 50/2014_ 7 exparte on 10.01.2005 and her two deliveries were on 27.12.2005 and 26.12.2006. The decree was passed on 09.06.2005, was almost six months prior to her first delivery and the order to set her exparte was one year prior to that. The explanation given by the revision petitioner before the trial Court is that she was having treatment for infertility, thereafter she became pregnant and within a gap of one year she delivered twice, and all these consumed considerable time and hence, a delay of 1601 days. The learned Munsiff observed that the revision petitioner's husband was taking care of the litigation, and her personal incapabilities could not have prevented her husband to meet the Counsel. She came to know of the exparte order only when her vendees, who had filed O.S.No.731/2008, contacted her and intimated her about the exparte decree against her. The learned Munsiff's finding is that the explanation about the petitioner being busy with her own affairs and could not enquire about the litigation is not sufficient for setting aside the exparte decree. As there was laches on her part, and law will protect only those who are _CRP 50/2014_ 8 vigilant to protect their rights. In the Appeal, the learned Sub Judge also agreed with the findings of the learned Munsiff and concluded that there were no sufficient reasons for condoning the delay and setting aside ex parte decree. 8. The learned Counsel on both sides heard. 9. It is the argument of the learned Counsel appearing for the revision petitioner was that the petitioner has a very good case on merit. The lie of the property would sufficiently indicate that the plaintiff in the suit could not have sustained the claim of a pathway through the petitioner's property lying on the south of an open Panchayat market and the plaintiff's property. It is suggested that the plaintiff's claim of pathway is through the market place and not through the property belonging to the revision petitioner. It is also pointed out that the plaintiff has not advanced any pleading as to the nature of the right claimed, apart from vaguely stating that it is a claim of easement. Necessary ingredients to prove a right of easement by prescription or necessity do not find a place in the _CRP 50/2014_ 9 pleadings. The Court below ought to have considered all these facts prior to awarding an exparte decree in favour of the plaintiff. It is also pointed out that the property of the defendant is not scheduled to the plaint. For the purpose of claiming easement right, there must be specific pleading as to the nature of easement, length of use and the description of the servient element. Without getting convinced about the claim of the plaintiff, the suit could not have been decreed ex parte. 10. The Hon'ble Supreme Court has in _**C.N.Ramappa Gowda v. C.C.Chandregowda, (2012) 5 SCC 265**_ , held as thus:- _“24. Reliance placed on the affidavit in a blindfold manner by the trial court merely on the ground that the defendant had failed to file written statement would amount to punitive treatment of the suit and the resultant decree would amount to decree which would be nothing short of a decree which is penal in nature._ _25. We find sufficient assistance from the apt observations of this Court extracted hereinabove which has held that the effect of non-filing of the written statement and proceeding to try the suit is clearly to expedite the disposal of the suit and is not penal in nature wherein the defendant has to be penalised for non filing of the written statement by trying the suit in a mechanical manner by passing a decree. We wish to reiterate that in a case where written statement has not been filed, the Court should be a little more cautious in proceeding under Order 8 Rule 10 CPC and before passing a judgment, it must ensure that even if the facts set out in the plaint are treated to have been admitted, a judgment and decree could not possibly be passed without requiring him to prove the fact pleaded in the plaint.”_ _CRP 50/2014_ 10 The facts in the above cited decision is that the defendant did not file a written statement, and exparte decree was obtained by the plaintiff. The matters to be proved by the plaintiff, which was his burden of proof, was not established, and therefore, the Court held that non-filing of written statement should not have penal consequences and that the affidavit alone would not be sufficient to prove the plaintiff's case, when serious questions of law and facts are involved. However, the exparte order was set aside on payment of cost on the delay. 11. The learned Counsel further relies on the decision reported in _**Ramesh Chand Ardawattiya v. Anil**_ _**Panjwani, (2003) 7 SCC 350**_ , wherein it is observed thus: _“33. xx xx Even if the suit proceeds ex-parte and in the absence of a written statement, unless the applicability of Order VIII Rule 10 of the CPC is attracted and the Court acts thereunder, the necessity of proof by the plaintiff of his case to the satisfaction of the Court cannot be dispensed with. In the absence of denial of plaint averments the burden of proof on the plaintiff is not very heavy. A prima facie proof of the relevant facts constituting the cause of action would suffice and the Court would grant the plaintiff such relief as to which he may in law be found entitled. In a case which has proceeded ex-parte the Court is not bound to frame issues under Order XIV and deliver the judgment on every issue as required by Order XX Rule 5. Yet the Trial Court would scrutinize the available pleadings and documents, consider the evidence adduced, and would do well to frame the 'point for determination' and proceed to construct the ex-parte judgment dealing with the points at issue one by one. Merely because the defendant is absent the Court shall not admit evidence the admissibility whereof is excluded by law nor permit its_ _CRP 50/2014_ 11 _decision being influenced by irrelevant or inadmissible evidence.”_ ## In _**Ananthula Sudhakar v. P.Buchi Reddy, AIR 2008 SC 2033**_ , the Honourable Court held as thus:- _“17. xx xx Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.”_ The learned Counsel would also point out that the right of way with permission confers no right and for this he has relied on the decision of this Court in _**Mathai Varkey**_ ## _**v. Thomas John, 1985 KHC 416**_ . 12. Hence, in view of the decisions relied on by the learned Counsel for the petitioner, it is argued that the Court has authority to go into the merits of the case and to see whether there is any justification in upholding an exparte decree, which has absolutely no merits or whether it is essential for the parties to be relegated to a properly constituted suit on title. 13. The learned Counsel for the revision petitioner also argues that the petitioner has sufficiently explained the inordinate delay in filing the application _CRP 50/2014_ 12 to get the exparte order set aside. He relies on the decision reported in _**B.S.Sheshagiri Setty v. State of Karnataka, (2016) 2 SCC 123**_ , which reads thus: _“28. xx xx Further, in the context of limitation, it has been held by this Court in a catena of cases that when what is at stake is justice, then a technical or pedantic approach should not be adopted by the Courts to do justice when there is miscarriage of justice caused to a public litigant.”_ In _**Collector, Land Acquisition, Anantnag v. Mst.Katiji,**_ _**AIR 1987 SC 1353**_ , the Honourable Supreme Court held as thus:- _“3. The legislature has conferred the power to condone delay by enacting S.51 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. 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. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-_ _"Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908. may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period."_ _1. Ordinarily a litigant does not stand to benefit by lodging an appeal late._ _2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties._ _3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.”_ _CRP 50/2014_ 13 The argument of the learned Counsel for the petitioner relying on the above cited decision is that refusing to condone the delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. ## In _**N.Balakrishnan v. M.Krishnakurthy, (1998) 7**_ ## _**SCC 123**_ , it was held as thus: _“8. Appellant's conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences._ _xx xx 12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words “sufficient cause” under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575: (1969) 1 SCR 1006 and State of W.B. v. Administrator, Howrah Municipality, (1972) 1 SCC 366: AIR 1972 SC 749._ _13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of malafides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary_ _CRP 50/2014_ 14 _guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss.”_ ## Again in _**Improvement Trust, Ludhiana v. Ujagar Singh,**_ ## _**(2010) 6 SCC 786,**_ it was held thus:- _“16. While considering the application for condonation of delay no straight jacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. Each case has to be weighed from its facts and the circumstances in which the party acts and behaves. From the conduct behaviour and attitude of the appellant it cannot be said that it had been absolutely callous and negligent in prosecuting the matter._ _17. Even though Mr.Vijay Hansaria appearing for the respondent No.5 has argued the matter at length and tried his best to persuade us to come to the conclusion that no sufficient grounds made out to interfere with the concurrent findings of facts but we are afraid, we are not satisfied with the line of arguments so adopted by the counsel for respondent No.5 and cannot subscribe to the same. After all, justice can be done only when the matter is fought on merits and in accordance with law rather than to dispose it of on such technicalities and that too at the threshold._ _18. Both sides had tried to argue the matter on merits but we refrain ourselves from touching the merits of the matter as that can best be done by the Executing Court which had denied an opportunity to the appellant to lead evidence and to prove the issues so formulated._ _19. In our opinion, ends of justice would be met by setting aside the impugned orders and matter is remitted to the Executing Court to consider and dispose of appellant's objections filed under Order 21 Rule 90 of CPC on merits and in accordance with law, at an early date. It is pertinent to point out that unless malafides are writ large on the conduct of the party, generally as a normal rule, delay should be condoned. In the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it on such technicalities._ _20. Apart from the above, appellant would not have gained in any manner whatsoever, by not filing the appeal within the period of limitation. It is also worth noticing that delay was also not that huge, which could not have been condoned, without putting the respondents to harm or prejudice. It is the duty of the Court to see to it that justice should be done between the parties.”_ _CRP 50/2014_ 15 ## In _**Mrs.Sandhya Rani Sarkar v. Smt.Sudha Rani Debi, AIR 1978 SC 537**_ , it was held as thus: _“8. xx xx It is undoubtedly true that in dealing with the question of condoning the delay under S.5 of the Limitation Act the party seeking relief has to satisfy the Court that he had sufficient cause for not preferring the appeal or making the application within the, prescribed time and this has always been understood to mean that the explanation has to cover the whole period of delay, vide Sitaram Rancharan etc. v. M. N. Nagarshana & Others(1). However, it is not possible to lay down precisely as to what facts or matters would constitute 'sufficient cause' under S.5 of the Limitation Act. But those words should be liberally construed so as to advance substantial, justice when no negligence or any inaction or want of bona fides is imputable to a party, i.e., the delay in filing an appeal should not have been for. reasons which indicate the party's negligence in not taking necessary steps which he would have or should have taken. What would be such necessary steps will again depend upon. the circumstances of a particular case (vide_ State of West Bengal v. Administrator, Howrah Municipality, (1972) 2 SCR 874: (AIR 1972 SC 749) _. Discretion is conferred on the Court before which an application for condoning delay is made and if the Court after keeping in view relevant principles exercises its discretion granting relief unless it is shown to be manifestly unjust or perverse, this Court would be loathe, to interfere with it.”_ ## In _**Srei International Finance Ltd. v. Fairgrowth**_ ## _**Financial Services Ltd., (2015) 13 SCC 95**_ , it is held as thus:- _“2. xx xx It is well settled that, ordinarily, a litigant should not be denied a hearing on merits unless something akin to gross negligence or misconduct on his part in contesting the proceedings is made out.”_ ## In _**Ganesharaju S. (D) Thr. L.Rs. v. Narasamma (D)**_ ## _**Thr.L.Rs., 2012 KHC 4227,**_ it is held as thus: _“15. The expression 'sufficient cause' is appearing in S.5 of the Indian Limitation Act, 1963, has to be given a liberal construction so as to advance substantial justice._ _CRP 50/2014_ 16 _16. Unless respondents are able to show mala fide in not approaching the Court within the period of limitation, generally as a normal rule, delay should be condoned. The trend of the Courts while dealing with the matter with regard to condonation of delay has tilted more towards condoning delay and directing the parties to contest the matter on merits, meaning thereby that such technicalities have been given a go-by._ _17. Rules of limitation are not meant to destroy or foreclose the right of parties. They are meant to see that parties do not resort to dilatory tactics but seeks their remedy promptly.”_ 15. _Per contra_ , the learned Counsel appearing for the 1[st] respondent would argue that the revision petitioner is not interested at present in the property. The 1[st] defendant in the suit sold the property of the revision petitioner and she was impleaded. But the suit was not contested by her. Subsequently, she assigned the property to third parties and the matter was left uncontested. It is pointed out that assignees of the property filed application for getting themselves impleaded and set aside the exparte decree. That petition was dismissed. Assignees thereafter filed another suit in which they have taken up a plea that the plaintiff in the suit is not entitled to any relief against them. The petitioner's apprehension is therefore, out of place. The learned Counsel argues that consequent to the amendment of C.P.C. in 1976, and _CRP 50/2014_ 17 introduction of second proviso to Rule 13 of Order 9, the Court shall not set aside a decree passed exparte, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. In the instant case, the revision petitioner had appeared and even engaged a lawyer, and thereafter absented herself. The 1[st] defendant had appeared and also filed a written statement. But despite that, the suit was not contested. 16. The learned Counsel relies on the decision reported in _**Parimal v. Veena @ Bharti, 2011 KHC 4117**_ , which reads thus: _“9. The legislature in its wisdom, made the second proviso, mandatory in nature. Thus, it is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein._ _10. "Sufficient Cause" is an expression which has been used in large number of Statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously.”_ _CRP 50/2014_ 18 17. The learned Counsel for the 1[st] respondent argues that evidence of the revision petitioner examined as PW1 also needs to be looked into and she has stated that her husband is a doctor and that she was under treatment for infertility. Her husband was looking after the litigation. If that be so, the incapacity of the petitioner would not prevented her from attending to the litigation. The learned Counsel also would argue that the merits of the case need not gone into for setting the exparte decree. Because, the only consideration for the Court is to find out whether the petitioner seeking to set aside the exparte decree has sufficient reason for doing so and the delay is properly explained. In the instant case, the delay is not explained properly and therefore, the petition was rightly dismissed by the learned Munsiff and affirmed in appeal by the learned Sub Judge. 18. There is no doubt that the trend of the Courts while dealing with the matter under Section 5 of the Limitation Act for condonation of delay has tilted more towards condoning delay and directing the parties to _CRP 50/2014_ 19 contest the matter on merits, meaning thereby that such technicalities have been given a go-by. It is always just, fair and proper that a matter should be heard on merit rather than shutting the doors at the threshold. The words 'sufficient cause' should be construed liberally and once the Court has satisfied about the sufficient cause, the length of delay is immaterial unless there is anything to show that there was _malafide_ or deliberate delay deployed as a dilatory tactics by the defendant, the Court should condone the delay. 19. In the instant case, the revision petitioner is a lady, whose husband was taking care of the litigation, she was undergoing treatment for infertility and was under accouchement thereafter, due to consecutive deliveries within short span of a year. In her second delivery, she had triplets. She had the responsibility of four infants to look after and her husband was abroad. Her Counsel had undertaken to look after the litigation. The 1[st] defendant had sold the property to her, had filed a written statement and had undertaken to pursue the litigation, which he did not. It is true that the _CRP 50/2014_ 20 revision petitioner sold the property to third parties. But during litigation, it was her responsibility towards the vendees, which she did not get in return from her vendor, the 1[st] defendant in the suit. That is why, she filed application for getting the exparte decree set aside after a reasonably long delay of more than four years. The reasons stated for not attending the litigation cannot be brushed aside very lightly. The petitioner's incapabilities will have to be sympathetically viewed. She would have been hard pressed for time and could not have contacted her Counsel. The neglect on her part could not have been contumacious or deliberate. She had nothing to gain by protracting the litigation. There is a serious question of right of way through the property of the defendants claimed by the plaintiff in the suit. The 1[st] defendant has raised a contention that the pathway allegedly used by the plaintiff is not through his property, but through a market place adjoining his property on the northern side. The suit is not a simple suit for injunction. Easement right of way through the defendant's property is the _CRP 50/2014_ 21 issue involved. It requires legal scrutiny on the basis of the evidence to be adduced. A full-fledged trial of the injunction suit may have prove that the relief sought by the plaintiff is not sufficient in view of the plea raised. Her right of way has to be established, which may probably be required to be relegated to another the suit for declaration of right. All these can be considered only if the parties go to trial. It is true that the Court while determining a question of setting aside the exparte need not go deep into the merits of the case. At the same time, it can be considered whether the exparte decree would have a long lasting effect on the rights of opposite party, if it is not considered on merits. These aspects, if given due importance, would indicate that it is essential for the suit to be decided on merits. “Sufficient cause” would only mean that the party did not act with malafides to protract the litigation. A party remaining inactive and not acting diligently, can always be asked to compensate the suffering party, with the ultimate purpose of rendering justice. On going through the facts of the case in hand, _CRP 50/2014_ 22 the 1[st] respondent has not able to establish that there was malafide intention on the part of the revision petitioner to protract the litigation. The revision petitioner did not definitely stand to gain by protracting the litigation. May be the revision petitioner as the 2[nd] defendant was not diligent enough to pursue the litigation, but she had reasons for that. Her vendor defended the suit, but he too remained exparte and did not contest the suit as was agreed by him. Definitely, he had nothing to lose, because he had already parted with the properties and probably he is not worried about his vendee. The revision petitioner has also sold the property, but she felt that it was her responsibility to protect the vendee from an unmerited decree thrust upon them. Under such circumstances she filed an application for condoning the delay. The Courts below did not go deep into the matter to find out the repercussions by the plaintiff earning an exparte decree in a matter where the right of way is claimed through the property of the defendants. I therefore, find that the delay should be condoned. But, it can be condoned only _CRP 50/2014_ 23 on payment of sufficient cost to compensate the plaintiff of the inconvenience that is caused by the inordinate delay in filing the application for setting aside the exparte decree. It is pointed out that the vendees of the revision petitioner have also filed a suit against the plaintiff in this suit, seeking injunction to restrain them from using the property as a pathway in which the plaintiff took a defence that they have already earned an exparte decree against their predecessor-ininterest. Hence, the litigation will continue. But the plaintiff has claimed a right of way in the instant suit, which needs determination at the hands of the Court. That can be only possible if the suit is restored to file. Hence, I am of the opinion that the exparte decree against the revision petitioner has to be set aside and the suit is restored to file. 20. In the result, the Revision Petition is allowed by setting aside the impugned order of the Munsiff Court in I.A.Nos.5048 & 5049 of 2009 and the judgment of the Sub Court, Nedumangad in C.M.A. No.19/2010. The revision petitioner's application for condonation of delay and for _CRP 50/2014_ 24 setting aside the exparte decree shall stand allowed, subject to the payment of exemplary cost of Rs.30,000/(Rupees thirty thousand only) to be paid to the plaintiff in the suit, within a period of thirty days. In case the cost is not paid within the time specified, this Revision Petition shall be deemed to have been dismissed and the exparte decree passed against the revision petitioner would stand revived. **Sd/-** **ASHOK MENON JUDGE**