Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN WEDNESDAY, THE 24TH DAY OF JANUARY 2024 / 4TH MAGHA, 1945 CRP NO. 421 OF 2023 CMA 11/2022 OF ASSISTANT SESSIONS COURT/SUB COURT, QUILANDY REVISION PETITIONER(S)/APPELLANTS/DEFENDANTS: 1 ACHUTHAN AGED 70 YEARS S/O CHEKKOOTTY, ARAYAMBATH HOUSE, SWASTHAM, MOODADI AMSOM, PURAKKAL DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN - 2 RAMAKRISHNAN AGED 49 YEARS S/O SANKARAN, WORKING IN KSEB, PATTERIYIL VEETTIL HOUSE, MOODADI AMSOM, PURAKKAL DESOM, KOYILANDY TALUK, KOZHIKODE, PIN - 673305 BY ADVS. A.RANJITH NARAYANAN A.SIMI RESPONDENT/RESPONDENT/PLAINTIFF: 1 MALLIKA D/O KUNHIKANARAN, SWASTHAM, "AKKAMBATH" HOUSE, MOODADI AMSOM, PURAKKAL DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN - 673305 BY ADVS. C.K.RAMAKRISHNAN P.CHANDRAN(K/250/1988) THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
C.JAYACHANDRAN, J.
------------------------------------ ------------------------------------ Dated this the 24th day of January, 2024
ORDER
The revision petitioners herein are the defendants in the suit O.S. No.140/2012 of the Munisff Court,
Koilandy. They are aggrieved by the common order
dated 21.11.2023, which dismissed C.M.A. 11/2023.
2. The brief facts to be taken notice of are as
follows: The suit O.S. No.140/2012 was one filed for injunction simplicitor before the Munsiff Court, Koilandy. In that suit, the defendants (petitioners herein) were set ex parte on 26.11.2012. However, the suit itself was dismissed on 27.02.2013. The plaintiffs filed restoration petition, in which notice was received by the defendants/petitioners on 27.04.2013. On 28.05.2013, the defendants were set ex parte in that I.A. On
06.06.2013, the suit was restored back on files. On 31.07.2013, the suit was decreed ex parte. After seven years, on 30.08.2021, an execution petition was filed as E.P. No.41/2023. The petitioner came to know about the ex parte decree being passed, only when they received notice in the execution petition. Immediately there upon, on 20.09.2021, the petitioners preferred two interlocutory applications, one for setting aside the ex parte decree and the other for condoning the delay of 2941 days. However, both the interlocutory applications
were dismissed by the learned Munsiff as per order
dated 31.05.2022. C.M.A. No.11/2022 was carried challenging the dismissal of the interlocutory applications. However, the C.M.A. was also dismissed, vide the impugned order dated 21.11.2023.
3. Heard the learned counsel for the petitioners and the respondent.
4. Learned counsel for the petitioners submits that no notice was issued to the petitioners/defendants
after the suit was restored back on files, which according to the learned counsel is mandatory, by virtue of the provision in Order 5, Rule 1. The second aspect highlighted is that no discussion, whatsoever, has been made by the learned Munsiff, or for that matter the Sub Judge, on the petition to condone the delay. It was specifically averred by the petitioners/defendants that they came to know about the ex parte decree only when they received notice in the execution petition, challenging which assertion, no counter affidavit was filed. Therefore, the assertion in the delay condonation petition should be deemed to have been proved, is the submission made by the learned counsel.
5. Per contra, these submissions were seriously opposed by the learned counsel for the respondent.
6. Having heard the learned counsel appearing
on both sides, this Court finds little merit in this Civil Revision Petition. First of all, this Court cannot endorse the submission made by the learned counsel for the
petitioners that issuance of summons after restoration of the suit is warranted Order 5, Rule 1. Order 5, Rule 1 speaks of issuance of summons at the time when the suit is duly instituted. It does not speak of any fresh notice to the defendants, upon restoration of a suit, which was previously dismissed for default. In the instant case, it is important to note that the defendants/petitioners have received the notice in I.A. No.395/2013, the application to restore the suit, on 27.04.2013. They did not choose to appear, with the result, the defendants/petitioners were set ex parte in that interlocutory application, on 28.05.2013. It could thus be seen that the defendants had knowledge of the restoration petition being considered. If that be so, they cannot be heard to contend that a fresh notice should be issued to them after restoring the suit, especially when there is no such mandate in the Code. It is relevant to note that the term restoration implies that the suit will continue from the stage where it was
stopped and not fresh initiation of the suit, so as to re- issue notice to the defendants. The first contention will therefore stand repelled.
7. As regards the second contention also, this
Court cannot endorse the submissions made by the learned counsel for the petitioners. A mere assertion in an application to condone the delay, that the petitioners came to know about the ex parte decree only on receipt of notice in the execution petition, cannot be taken as an axiomatic truth, even in the absence of a counter denying the same. The delay sought to be condoned is huge, to the extent of 2941 days. The burden is squarely on the petitioners to establish a sufficient cause for not preferring the application within time. The same cannot be left to be decided on the principle of non traverse of the pleading in support of the delay condonation petition. Even in a case where the petition to condone the delay has not been opposed by the respondent, still it is a matter of satisfaction of the
Court, as regards the existence of a sufficient cause to condone the delay, which burden the petitioner has to discharge. The same is not seen done here. In such circumstances, challenges to the impugned order on the basis of both grounds cannot sustain. The Civil Revision Petition fails and the same would stand dismissed.
Sd/- C. JAYACHANDRAN JUDGE SKP/24-01