## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 21[ST] DAY OF FEBRUARY 2022 / 2ND PHALGUNA,**
**1943**
## **CRP NO. 393 OF 2020**
**AGAINST THE JUDGMENT IN CMA 39/2019 OF ADDITIONAL**
**DISTRICT COURT-I, KOZHIKODE**
**OS 859/2012 OF III ADDITIONAL SUB COURT, KOZHIKODE**
## **REVISION PETITIONER/APPELLANT/DEFENDANT NO.2 :**
**VELLIYAM MANIKKOTT RIJESH, AGED 41 YEARS S/O SHANKARAN, THAPASYA, MANKAVU POST, VALAYANAD AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT-673007.**
**BY ADVS. K.M.FIROZ SMT.M.SHAJNA**
## **RESPONDENTS/RESPONDENTS/PLAINTIFF AND DEFENDANT NO.1 :**
- **1 P.T. SHANIYA KADHEEJA, AGED 30, W/O.THAMBEEL, CHERUMANASSERY ROAD, PANNIYANKARA AMSOM DESOM AND POST, KOZHIKODE TALUK, KOZHIKODE DISTRICT-673003.**
**2 VELLIYAM MANIKKOTT RANJEESH, AGED 42, S/O.SHANKARAN, THAPASYA, MANKAVU POST, VALAYANAD AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT-673007.**
**BY ADVS. SRI.M.S.ANEER SMT.SREELAKSHMI SURESH**
**THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **A.BADHARUDEEN, J.**
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## **C.R.P.No.393 of 2020**
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## **Dated this the 21[st] day of February, 2022**
## **O R D E R**
Concurrent findings entered into by the Additional Sub Court-III, Kozhikode in I.A.No.583 of 2018 in O.S.No.859 of 2012 and in C.M.A.No.39 of 2019 of the Additional District Court-I, Kozhikode are under challenge at the instance of the defendant No.2 in O.S.No.859 of 2012.
2. Heard the learned counsel for the petitioner as well as the learned counsel appearing for the plaintiff in the above suit who is the respondent herein.
3. In this case, originally suit was filed in the year 2012 with a prayer to execute an agreement for specific performance of contract alleged to be executed by the first defendant for and on behalf of himself as well as for the second defendant. Thereafter, defendant was set ex-parte on 28.02.2013. Subsequently, second defendant filed I.A.No.162 of 2015 to set
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aside the ex-parte decree along with the delay petition I.A.No.161 of 2015 to condone the delay of 649 days in filing I.A.No.162 of 2015. The learned trial court allowed both applications and the ex-parte decree was set aside. It was thereafter, after framing issues, the case was listed for trial on 08.12.2015. On that day, defendants were absent and they were set ex-parte. Plaintiff was examined as PW1 and Exts.A1 to A4 were marked. Consequently, on 19.12.2015, the suit was again decreed ex-parte for the second time. In the meantime, the plaintiff executed the decree by purchasing nonjudicial stamp paper and paying the registration fee etc. When the delivery proceedings were initiated, the petitioner herein who is the first defendant, approached the trial cout to set aside the ex-parte decree by filing I.A.No.583 of 2018 along with the petition I.A.No.582 of 2018 to condone the delay of 781 days. The first defendant given evidence as PW1.
4. The trial court appraised the evidence and found that the reason stated by PW1 to condone delay of 781 days not justifiable. The relevant observation is in paragraph 6 of the order and the same is extracted hereunder;
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“6. xxx Though PW1 stated that the matter was settled between the father of the plaintiff and the defendants due to the intervention of mediators, apart from his interested version there is no piece of document before the court to substantiate the same. Thus there is no evidence to show that the plaintiff agreed to withdraw the suit. There is no whisper in the petition that when the matter was settled and the plaintiff agreed to withdraw the case. There is no mention regarding the name of the mediators who intervened in the matter. Thus there is absolutely nothing to show that the settlement alleged by the petitioner is true. Another reason stated in the petition for the delay is that the petitioner was not in station during the said period, thus he was set exparte in the suit and decree was passed. There is no whisper in the petition and affidavit of PW1 that during the date when the petitioner was set exparte he was working at which place. During cross examination PW1 deposed that he was working in abroad from 2008 to 2011 and later he was working at Kozhikode and Gundalpet and there is nothing to substantiate the PW1 on 19.12.2015 the PW1 was not in station. PW1 admitted during cross examination that he had given power of attorney in favour of 1[st] defendant
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to conduct the suit and the said power of attorney is still in force. According to him his power of attorney failed to conduct the suit. But till the date the petitioner has not taken any action to cancel the power of attorney issued by him in favour of his brother. That shows that the said version of the PW1 is not a believable one. PW1 deposed before the court that his brother alienated the plaint schedule property in the year 2015 and he came to know about the same in the year 2015 itself but there is no explanation forthcoming in the evidence of petitioner why he has not taken steps in the year 2015 or in proper time. It is pertinent to note that there is a delay of 781 days in filing I.A.583/18 to set aside the exparte decree. The materials before the court shows that there is absolutely nothing to show that there is any sufficient explanation for the delay of 781 days. The petitioner failed to give proper explanation for the delay of 781 days. After the exparte decree the respondent has deposited the balance sale consideration and the sale deed in favour of the respondent was executed through the intervention of court and the delivery of the property also was sought by the respondent. In the affidavit of PW1 it is alleged that the petitioner has no other house or building for his residence but during cross-
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examination it was come out in evidence that he has no voters list or other document in the address of the plaint schedule property. Though PW1 alleged that he has not received any summons or notice in the suit and in the proceedings after the decree, during crossexamination it was come out that his brother informed that the matter was settled.xxx “
5. Consequently, the learned Munsiff dismissed both petitions. When the matter was challenged in appeal, the learned Sub Judge also re-appraised the materials and finally, dismissed the appeal. In paragraph 19 of the appellate judgments, it has been stated that though PW1 alleged collusion between the plaintiff and the first defendant, no such collusion alleged in I.A.No.582 of 2018. Apart from that, though the petitioner claimed to be in the foreign country during the relevant time, during cross-examination, he has given evidence that he was working at Gulf during 2008-2011 and not thereafter. He also given evidence that during 2012 onwards he had been working at Kozhikode and Gundalpet. The relevant question that has been considered by the courts below, is the sufficiency of the evidence given by the petitioner herein to
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condone a long delay of 781 days. Both Courts concurrently found otherwise.
6. The learned counsel for the petitioner placed a decision reported in [AIR 1999 SC 1341], **Iswar Bhai C.Patel Alias Bachu Bhai Patel v. Harihar Behera and Another** to contend that, if the other side did not enter the witness box to make a statement, the same is fatal. Paragraph 17 of the above judgment is as under;
“17. xxx This fact has not been controverted by the appellant who did not enter the witness box to make a statement on oath denying the statement of Defendant (Respondent) 2 that it was at his instance that Respondent 2 had advanced the amount of Rs.7,000/- to the appellant by issuing a cheque on the account of Defendant (Respondent) 1. Having not entered into the witness box and having not presented himself for cross examination, an adverse presumption has to be drawn against him on the basis of the principles contained in illustration (g) of S.114 of the Evidence Act, 1872.”
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7. In fact, the above decision was rendered, while dealing with trial of a case and not in case when 'sufficient cause' was considered for condoning delay in setting aside the ex-parte decree. Therefore, I do not think that non-examination of the defendants in this case is a reason to find fault with the defendants, since it is a bound and duty of the petitioner herein to explain the delay by showing 'sufficient cause' to condone the delay of 781 days. Therefore, the concurrent finding entered into by the courts below do not suffer from any perversity, arbitrariness or patent illegality to have interference by invoking power under Article 227 of the Constitution of India. Therefore, this original petition is found to be meritless.
Accordingly, this original petition stands dismissed.
The interim stay shall stand vacated and the execution court shall go with delivery proceedings.
Sd/-
## **A.BADHARUDEEN, JUDGE**
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