Venugopalan vs Jai Prakash

CRP NO. 128 OF 2020 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 7[TH] DAY OF JUNE 2022 / 17TH JYAISHTA, 1944 CRP NO. 128 OF 2020** **AGAINST THE ORDER/JUDGMENT IN CMA 24/2019 OF DISTRICT COURT & SESSIONS COURT, PALAKKAD OS 22/2014 OF ADDITIONAL SUB COURT, PALAKKAD REVISION PETITIONER/S:** VENUGOPALAN AGED 60 YEARS S/O. PAZHANIMALA, KACHERIKKAL VEEDU, THACHANADI, PUDUKKODE, ALATHUR, PALAKKAD. BY ADV V.A.JOHNSON (VARIKKAPPALLIL) ## **RESPONDENT/S:** JAI PRAKASH, AGED 46 YEARS S/O. LATE SURENDRAN, MANIYANKAD VEEDU, EAST PANANTHODI, CHOKKANATHAPURAM P.O. PUTHUR, PALAKKAD 678 005. BY ADVS. SAJAN VARGHEESE K. LIJU. M.P THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRP NO. 128 OF 2020 2 ## **ORDER** The revision petition is filed to set aside the order of dismissal in I.A.No.2616/2018 in O.S.No.22/2014 of the Court of the Subordinate Judge, Palakkad and the judgment passed by the Court of the District Judge, Palakkad in C.M.A. No.24/2019. 2. The case of the revision petitioner, in a nutshell, in the memorandum of revision petition is that, he is the defendant in O.S.No.22/2014 on the file of the Court of the Subordinate Judge, Palakkad, which is filed by the respondent, seeking a decree for specific performance or in the alternative, for a decree for refund of the advance amount. The suit was decreed by the Trial Court on 10.08.2018 due to the non-appearance of the petitioner. The petitioner had filed I.A.No.2616/2018 under Order IX Rule 13 of the Code of Civil Procedure, to set aside the ex-parte decree. He had contended that he had gone to Idukki and could not return back to his residence due CRP NO. 128 OF 2020 3 to the flood that occurred in the State. Even though he had pleaded sufficient cause to set aside the ex-parte decree, the Trial Court dismissed his application. The Appellate Court confirmed the order by dismissing the appeal. The impugned order and judgment are erroneous and wrong. Hence, the revision petition. 3. Heard; Sri.Johnson Varikkappallil, the learned counsel appearing for the revision petitioner and Sri.Sajan Varghese, the learned counsel appearing for the respondent. 4. The short point that arises for consideration in this revision petition is whether there is any illegality in the impugned order and judgment. 5. The petitioner, who is the defendant in the suit, was set ex-parte and an ex-parte decree was passed on 10.08.2018. Immediately, within the prescribed time period, the petitioner filed I.A.No.2616/2018, to set aside CRP NO. 128 OF 2020 4 the ex-parte decree. He had asserted that, it was only due to the flood that occurred in the State, he was prevented from appearing before the Trial Court. There was no willful latches on his side. The respondent had opposed the application by contending that the suit was once decreed ex-parte and the same was set aside. Thereafter, the petitioner deliberately failed to appear before Court on the day the case was listed for trial. The petitioner's sole intention was to protract the determination of the suit. Hence, the application may be dismissed. 6. The Trial Court taking into account the fact that the petitioner was earlier set ex-parte and there was no material to prove that he had gone to Idukki, held that there was no sufficient cause offered to set aside the exparte decree. 7. The Appellate Court, on re-consideration of the pleadings and materials on record, reiterated the CRP NO. 128 OF 2020 5 findings of the Trial Court and held that the petitioner was habitually abusing the process of the Court by absenting himself at the time of trial, and his willful refusal to co-operate with the trial was deliberate and causing hardship to the respondent. Hence, the Appellate Court confirmed the order of the Trial Court and dismissed the appeal. 8. In **Robin Thapa vs. Robit Dora** [2019 KHC 6614], the Honourable Supreme Court has held that ordinarily a litigation is based on adjudication on the merit of the contention of the parties and the litigation may not be terminated by default. The cause of justice does require that, as far as possible, adjudication be done on merits. 9. In **G.P.Srivastava vs. R.K. Raizada** [2000 KHC 1023], the Honourable Supreme Court has held that sufficient cause must be liberally constructed to enable the Court to do complete justice, and the antecedents of CRP NO. 128 OF 2020 6 the party cannot be considered to decide sufficient cause. 10. In the case at hand, the Courts below have given undue emphasis and weightage to the antecedents of the petitioner in not appearing on the previous occasion, which was in consequential to consider the sufficient cause for considering the present application. Even though this Court does not endorse or approve the act of the petitioner in absenting himself, when the case was listed for trial, in the cause of justice, I am of the firm view that a lenient view is to be taken in the matter to grant the petitioner one more opportunity to substantiate his defense, so that the suit can be decided on merits rather on default. Nonetheless, the petitioner would have to compensate the respondent, for the hardship that has been caused to the respondent, by absenting himself on the posting dates and unnecessarily dragging the respondent to contest the proceedings before this Court CRP NO. 128 OF 2020 7 and the Appellate Court. Also, as the suit is of the year 2014, complete justice can be done by directing the Trial Court to dispose of the suit within a time frame, which would tide over the hardship and prejudice caused to the respondent. 11. In the result, the revision petition is allowed in the following manner: (i) The order dated 10.12.2018 in I.A.No.2616/2018 in O.S.No.22/2014 of the Subordinate Judge's Court, Palakkad and the judgment dated 19.08.2019 in C.M.A.No.24/2019 of the District Court, Palakkad are set aside, subject to condition that the petitioner deposits an amount of Rs.10,000/- as cost before the Trial Court within a period of two weeks from the date of receipt of a certified copy of this judgment and filing a memo before the Trial Court with a copy of this order. CRP NO. 128 OF 2020 8 - (ii) In case condition number (i) is complied by the petitioner, O.S.No.22/2014 will stand restored and the parties shall mark their appearance before the Trial Court on **04.07.2022** through their counsel. - (iii) On a consideration of the fact that the suit is of the year 2014, I direct the Court of the Munsiff to consider and dispose of O.S.No.22/2014, in accordance with law, as expeditiously as possible, at any rate on or before 31.10.2022. - (iv) Needless to mention, if the petitioner absents himself, the Trial Court would be at liberty to set him ex-parte and continue with the execution petition from the stage it is stopped. Sd/- ## **C.S.DIAS, JUDGE** rkc/07.06.22