Kerala High Court
Jayakumari vs Ismail Rawther on 28 May, 2001
ORDER K.A. Mohamed Shafi, J.
1. This C.R.P. is filed challenging the common order dated 11.8.2000 in I.A. Nos. 1951 & 1957/1999 in O.S. No. 90/98 on the file of the Subordinate Judge's Couft, Mavelikkara.
2. The revision petitioners-defendants in the above suit filed I.A. 1951/99 to set aside he ex parte decree passed against them on 20.8.99 under O. 9 R. 13 C.P.C. and I.A. 1957/99 to condone the delay of 66 days in preferring the application to set aside the ex parte decree under S. 5 of the Limitation Act. The lower court found no ground to condone the delay in filing the application to set aside the ex parte decree and accordingly dismissed both the applications. Hence the defendants have preferred this revision before this Court challenging the common order in both the I.As.
3. The counsel for the respondent vehemently contended that the remedy available to the revision petitioners-defendants is to file an appeal against the order dismissing the application to set aside the ex parte decree taking a ground in the appeal regarding the incorrectness of the order passed by the trial court in the application to condone the delay in preferring the petition to set aside the ex parte decree. In support of this contention the counsel for the respondent relied upon the decision of this Court in Kunihraman v. Rossy (1979 KLT 718) wherein this Court has held that in cases where petition to condone the delay in filing the appeal is dismissed and the appeal is also dismissed on the ground that it is bared by limitation, proper remedy is to file an appeal against the decree, if it is allowed under law and to take the ground in the appeal that the lower court was wrong in not excusing the delay in filing the appeal. But after considering the various judgments of this Court as well as the various High Court I am unable to subscribe to the above view expressed by the Single Judge of this Court.
4. In the decision in K. virupakshiah v. M. Shivalingaiah (AIR 1960 A.P. 540) a Single Judge of the Andhra Pradesh High Court following various decisions of the Madras High Court has observed as follows:
"(5). The question whether, in spite of an applicant's omission to pursue the remedy of appeal, the High Court ought to exercise its discretionary power of interference in revision, obviously depends on the special circumstances of each case. It has been held by courts that it would be proper to interfere in revision where the existence of the alternative remedy is doubtful, or where the alternative remedy is inconvenient or is not efficacious or is barred or where non-interference will lead to multiplicity of proceedings and unnecessary expense and delay, or results in grave injustice."
5. In the decision in Kuruvilla v. Rajagopala Iyer (1966 KLT 916) a Single Judge of this Court negativing the contention that if the appeal against the order dismissing the application which amounts to a decree challenging the correctness of the order dismissing the application to condone the delay, has observed as follows:
"14. If this Court is satisfied that the rejection of the application under S. 5 of the Limitation Act by the lower court is not justifed, in my opinion, the order of the learned District Judge dismissing the appeal based upon this order will be absolutely void and if the order under attack is set aside the legal consequence will be all those orders, will have no effect in law"
6. In the decision in Subramonia Iyer v. State of Kerala (1967 KLT 210) a Single Judge of this Court has observed as follows:
"The legal position is clear that in a case where there is a right of appeal to a subordinate court but no right of second appeal, the revisional powers of the High Court are excluded".
7. In the decision in Lakshmikutty Pankickathi v. Bharghavi (1987 (2) KLT 562) a Single Judge of this Court has observed as follows:
"If a revision is filed against the order rejecting the delay petition without challenging the order dismissing the application under O. R. R. 9. It could be contended that the revision is incompetent without challenging the ultimate order in the independent proceeding. Since the grounds of rejection of the delay petition and the against the order rejecting the application under O. 9, R. 9 without even separately challenging the order dismissing the delay petition by a separate revision .....................When tow remedies are available, the party must have the right to opt the remedy which is best suited to him. In an appeal the grounds could be successfully challenged because scope of interference is wider than in a revision. There is absolutely nothing in the provision to restrict that right. The argument that, dismissal of the application under O. R R. 9 consequent on the dismissal of the delay petition is not an order coming within O. 43R. 1(c) acceptable."
8. It is clear from the above rulings of this Court that when an appeal is provided against the order passed by the trial court and there is no further provision for second appeal against the order passed by the appellate court, a revision to the High Court under S. 115 of the C.P.C. is competent. It is also laid down that when two remedies are available to a party against the order passed by the trial court, he can elect out of the two remedies available to him. In this case the respondent has no contention that a second appeal is provided under the C.P.C. against the judgment in appeal challenging the order passed by the trial court under O. 9 R. 13 of the C.P.C. Under the circumstances the preliminary objection raised by the respondent that the above revision is incompetent under S. 115 of the C.P.C. since appeal lies before the lower appellate court against the order dismissing the application under O. 9 R. 13 of the C.P.C. to set aside ex parte decree, is absolutely unsustainable.
9. The above suit was posted for filing written statement on 5.8.99 on that date no written statement was filed and there was filed and there was no representation on behalf of the defendants. Therefore, the defendants were set ex parte on that day and the suit was decreed by the trial court and ex parte decree was passed by the trial court on 20.8.99. The defendants-petitioners filed petition to set aside ex parte decree along with a petition to condone the delay of 66 days in preferring the petition to set aside ex parte decree. The petitioners have contended that they had engaged one advocate to appear for them in the suit and he had informed two postings of the case. but he failed to inform that about the subsequent postings of the case and therefore, the petitioners could not appear before the Court and file written statement on that day. According to them, as they did not get any information about the case from their counsel, they met him on 20.11.1999 and enquired about the same and on that day the were informed that the suit was decreed ex parte. They have also contended that subsequently it was revealed that Shri. Shaji Oommen, advocate did not appear in the case and another advocate Shri. C.D. Anil filed vakalath on their behalf and thought he advocate Shri. C.D. Anil informed Shri. Shaji Oommen about the postings of the case, he did not inform the petitioners. Therefore, the petitioners have contended that there is no laches of negligence on their part in not appearing before the trial court.
10. The respondent has contended that after the petitioners were set exparte on 5.8.1999 there were two postings and the petitioners did not appear on those posting dates also. It is also contended that during those period there was another suit before the trial court and one advocate Shri. Anil Kumar was appearing from them and the Ist defendant is invovled in two other criminal cases also. Therefore, he has contended that the petitioners have invented false contention to cover up their laches in appearing before the court and to contest the case. Therefore, there is absolutely no bona fides in the petition filed by the petitioners and no ground to condone the delay in filing the petition to set aside the ex parte decree is made out.
11. As already noted the delay in preferring the petition to set aside ex parte decree is only 66 days. It is well settled that the petition to condone the delay under S. 5 of the Limitation Act should be construed liberally. In the decision in G. Ramagowda v. Special Land Acquisition Officer, Bangalore (AIR 1988 SC 897) The Supreme Court has observed as follows:
"However, the expression 'sufficient cause' in S. 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay. In Cottage's case (supra). this court said:
'When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay'.
'It must be grasped that judiciary is respected not on account its power to legalise injustice on technical grounds but because it is removing injustice and is expected to do so'".
12. After hearing the counsel appearing on both sides I find that it cannot be said that the petitioners were grossly negligent or palpably indifferent in prosecuting the case. I also find that the explanation offered by the petitioners for their non-appearance before the Court on 5.8.1999 and thereafter till the suit was decreed ex parte on 20.8.1999 is probable and acceptable and the petitioners should be given an opportunity to urge their contentions in the suit. Therefore, I find that the lower court was in manifest error in not allowing the application to condone the delay and consequently dismissing the application to set aside the ex parte decree.
Hence the revision petition is allowed and the impugned order is set aside. The I.A. 1957/99 to condone the delay of 66 days in preferring the I.A. 1951/99 to set aside the ex parte decree is allowed and I.A. 1951/99 to set aside ex parte is also allowed. The lower court is directed to restore the suit on file and to dispose of the same in accordance with law.