Kerala High Court
Unniraman vs Padmanabhan And Anr. on 5 November, 1987
Equivalent citations: AIR1988KER257, AIR 1988 KERALA 257, (1987) 2 KER LT 1023 (1988) 1 CURCC 868, (1988) 1 CURCC 868
ORDER Varghese Kalliatha, J.
1. Departing from a hyper-technical view, the courts below have taken a justice-oriented approach in this case. The courts below have rightly understood that judiciary is held in respect by the people and the litigants not on account of its power to legalise an unjust cause on technical grounds. When real justice is seen pitted against technical considerations, the courts should always lean to disburse substantial justice. This is so, because no one can claim to have acquired a vested right in perpetrating an injustice on account of a rule of technicality or on account of a little negligence on the part of the other side. In such cases, courts should apply the technical rules in a rational, commonsense and pragmatic manner. Courts are given the power to restore a suit decreed ex parte. In exercising this power, courts should always consider the question whether a meritorious matter is being decided at the very threshold without an opportunity being given to the party concerned to place his case before the court. Courts always insist for fair play even in cases where courts have to consider actions in administrative law. I feel that it should all the more inhere in judicial matters.
2. Here, in this case, the suit was decreed ex parte. The 1st defendant filed a petition to set aside the ex parte decree, supported by an affidavit disclosing the fact that he was ill during the relevant time. He produced a medical certificate to place his case of illness. The trial Court considered the affidavit and the medical certificate, allowed the petition to set aside the ex parte decree and restored the suit to file.
3. The counsel for the revision petitioner raised a plea based on a technical rule that no separate application was filed for condoning the delay in filing the petition to set aside the ex parte decree. The counsel is not in a position to say that there was no good reason disclosed in the affidavit for the non-appearance of the defendant, but he only said that the defendant ought to have filed a separate application to condone the delay in filing the petition to set aside the ex parte decree. This technical plea was not accepted by the Courts below. I feel that what the Courts below have done is right. The affidavit n support of the petition to set aside the ex parte decree gives sufficient reason for condoning the delay in filing the petition to set aside the ex parte decree. I feel, in the circumstances, this was sufficient for the Courts to act. Obviously, the delay has occurred in filing the petition to set aside the ex parte decree because of the illness of the 1st defendant and that fact has been stated in the affidavit in support of the petition to set aside the ex parte decree. Anyhow, in my judgment, this is not a fit case where I should exercise my power under Section 115, C.P.C.
The Civil Revision Petition is dismissed. There will be no order as to costs.