Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 21ST DAY OF FEBRUARY 2022 / 2ND PHALGUNA, 1943 OP(C) NO. 353 OF 2022 AGAINST THE ORDERS IN IA Nos.1098/2019, 1099/2019, OTTAPPALAM PETITIONER/PETITIONER/DEFENDANT:
RASHEED V.P., AGED 47 YEARS, S/O.LATE ABDU, VALAYAMBUZHA HOUSE, THACHANATTUKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT-678583. BY ADVS. SRI.P.JAYARAM SRI.GIGI PAPPACHAN SRI.K.R.PAUL RESPONDENT/RESPONDENT/PLAINTIFF: MUHAMMED SHAFI, AGED 46 YEARS, S/O.MUHAMMED KUNJU, THARAYIL PUTHENVEETTIL, P.O.ERUVA, PATHIYUR, KARTHIKAPPALLY TALUK, ALAPUZHA DISTRICT-690564. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
The defendant in O.S.No.79/2016 on the file of the Sub Court, Ottapalam, who is aggrieved by dismissal of I.A.Nos.2052 and 2053 of 2017 in the above case, which were filed to condone delay of 420 days in filing I.A. to restore application filed to set aside ex-parte decree filed with a delay of 252 days, has preferred this Original Petition.
2. Heard the learned counsel for the petitioner on admission.
3. Going by the order impugned, it could be seen that the learned Sub Judge dismissed the application on the ground that no specific reasons stated to condone the delay of 420 days in filing the application to restore the applications which were dismissed for non-prosecution.
4. I have perused the affidavit in support of the I.A. and the reasons stated
therein is that he could not contact the lawyer because he was engaged otherwise. In fact, no specific reasons for condoning 420 days was stated in the affidavit. This is the reason why the learned Sub Judge dismissed the application. The learned counsel for the petitioner also miserably failed to substantiate 'sufficient cause' to condone the delay of 420 days, though he argued the difficulty of the petitioner to pay the decree debt.
5. Apart from that, it could be noticed that the petitioner herein, who remained ex- parte in a suit, which was filed in the year 2016 filed two applications during 2019 to set aside the ex-parte decree with a delay of 252 days.
6. Thereafter, he filed O.P.(C) No.3148/2018 before this Court and got stayed
the execution of the decree highlighting pendency of the said petitions. After enjoying the stay, he did not care to prosecute the petitions before the court
below in the matter of getting the ex-parte decree set aside after condoning delay of 252 days, and, consequently, the said petitions were dismissed. It was thereafter, I.A. Nos.2052/2017 and 2053/2017 were filed with prayer to condone delay of 420 days in filing I.A. to restore the earlier petitions filed for setting aside the ex-parte decree.
7. A vital argument in this regard is the attitude of the petitioner herein. He
had vigilantly prosecuted O.P.(C) No.3148/2018 in order to keep the order of stay in executing the decree and he did not care to prosecute the petitions filed before the trial court to set aside the ex-parte decree with a delay of 252 days. When these petitions were dismissed for non-prosecution,
O.P.(C) No.3148/2018 got dismissed as infructuous. The said attitude shows that the petitioner willfully not intended to
prosecute the earlier petitions in view of the protection of stay granted in O.P.(C) No.3148/2018. Thereafter, he filed the present applications along with a prayer to condone the delay of 420 days in filing the petition for restoration.
8. Precisely the petitioner herein vehemently prosecuted O.P.(C) No.3148/2018 by contacting his lawyer and he did not care to
prosecute petitions by exercising the same vigil and spirit. Thus, those applications were dismissed. Therefore, no doubt the delay sought to be condoned in
I.A.No.2152/2017 is not properly explained by showing 'sufficient cause'. No doubt, the history of the case as espoused would indicate dilatory tactics to avoid disposal of the suit on merits with ulterior motives, where the claim is Rs.13 lakh. Therefore, the learned Sub Judge rightly dismissed the application. In view of the matter, this Original Petition is devoid of merits and it is accordingly dismissed. Sd/- A.BADHARUDEEN, JUDGE. ww APPENDIX OF OP(C) 353/2022 PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ORDER DATED 21.10.2021 IN I.A.NO.1098/2019 IN I.A. NO.2052/2017 IN O.S.NO.79/2016 ON THE FILES OF THE SUB COURT, OTTAPALAM. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 21.10.2021 IN I.A.NO.1099/2019 IN I.A. NO.2052/2017 IN O.S.NO.79/2016 ON THE FILES OF THE SUB COURT, OTTAPALAM. EXHIBIT P3 TRUE COPY OF THE ORDER 21.10.2021 IN I.A.NO.1100/2019 IN I.A.NO.2053/2017 IN O.S.NO.79/2016 ON THE FILES OF THE SUB COURT, OTTAPALAM. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 21.10.2021 IN I.A.NO.1101/2019 IN I.A. NO.2053/2017 IN O.S.NO.79/2016 ON THE FILES OF THE SUB COURT, OTTAPALAM.
EXHIBIT P5 TRUE COPY OF THE AFFIDAVIT AND APPLICATION IN I.A.NO.1098/2019 IN I.A.NO.2052/2017 IN O.S.NO.79/2016 ON EXHIBIT P6 TRUE COPY OF THE AFFIDAVIT AND APPLICATION IN I.A.NO.1099/2019 IN I.A.NO.2052/2017 IN O.S.NO.79/2016 ON EXHIBIT P7 TRUE COPY OF THE AFFIDAVIT AND APPLICATION IN I.A.NO.1100/2019 IN I.A.NO.2053/2017 IN O.S.NO.79/2016 ON EXHIBIT P8 TRUE COPY OF THE AFFIDAVIT AND APPLICATION IN I.A.NO.1101/2019 IN I.A.NO.2053/2017 IN O.S.NO.79/2016 ON EXHIBIT P9 TRUE COPY OF THE AFFIDAVIT AND APPLICATION IN I.A.NO.2052/2017 IN O.S.NO.79/2016 ON THE FILES OF THE SUB COURT, OTTAPALAM. EXHIBIT P10 TRUE COPY OF THE AFFIDAVIT AND APPLICATION IN I.A.NO.2053/2017 IN O.S.NO.79/2016 ON THE FILES OF THE SUB COURT, OTTAPALAM. EXHIBIT P11 TRUE COPY OF THE PLAINT IN O.S. NO.79/2016 ON THE FILES OF THE SUB COURT, OTTAPALAM. EXHIBIT P12 TRUE COPY OF THE ORDER DATED 19.7.2021 IN O.P.(C) NO.3148/2018, HIGH COURT OF KERALA.