SIBY JOSEPH Vs. P I GEORGE

JUDGEMENT

(1.) Defendant in O.S.No.42 of 2009 of the court of learned Sub Judge, Chengannur is the petitioner before me. Respondent filed that suit for recovery of money based on a few cheques. The case was posted for trial in the list on 10-08-2009. That day, petitioner says, as he was laid up due to Jaundice he could not appear and his counsel made Ext.P3, application to remove the case from list as per instruction given by him. The case was posted on 12-08- 2009. Case was decided against petitioner ex parte on 13-08- 2009 but on 10-09-2009 petitioner filed Ext.P5, I.A.No.599 of 2009 to set aside the ex parte judgment and decree. On that application notice was issued to the respondent and posted for return of notice on 03-10-2009. On that day, Ext.P5, application was dismissed for default. Petitioner filed Ext.P6, I.A.No.804 of 2009 for review and restoration of Ext.P5, application and Ext.P7, application to condone the delay in filing Ext.P6, application. Respondent opposed Exts.P6 and P7 vide Ext.P8, objection. Learned Sub Judge vide Ext.P9, order dated January 30, 2010 has dismissed Exts.P6 and P7 stating that absence of petitioner in court on 03-10-2009 was wilful or deliberate. That order is under challenge in this court under Article 227 of the Constitution. Learned counsel contended that the observation made by learned Sub Judge that absence of petitioner in court on 03-10-2009 was willful and deliberate is not correct. Learned counsel requested that petitioner may be given an opportunity to prosecute Ext.P5, application to set aside the ex parte judgment and decree. Learned counsel for respondent opposed the prayer and supported Ext.P9, order.

(2.) I have gone through Ext.P9, order. It is not revealed in what way learned Sub Judge came to the conclusion that petitioner willfully or deliberately absented himself from court on 03-10-2009 on which day Ext.P5, application was posted for appearance of respondent/plaintiff. It is not clear whether respondent/plaintiff had appeared on Ext.P5, application on 03-10-2009. It is not clear what exactly was the 'default' on the part of petitioner on 03-10-2009. By 'default' I mean to understand failure on the part of the party concerned to do and act which is enjoined by the statute or as directed by the court. In the present case on 03-10-2009 Ext.P5, application was posted for appearance of respondent. There was nothing which petitioner was required to do on that day, even if it is assumed that petitioner was absent in court on that day. Hence, I am unable to accept that view of learned Sub Judge either that there was 'default' on the part of petitioner on 03-10-2009 or that his absence in court on that day was deliberate or willful. Having regard to the circumstances stated before me I am persuaded to think that petitioner must be given an opportunity to prosecute Ext.P5, application.

(3.) Resultantly this petition is allowed and Ext.P9, order is set aside. Exts.P6 and P7, applications will stand allowed. Respondent takes notice on Ext.P5, application (to set aside the ex parte judgment and decree). Learned Sub Judge shall dispose of Ext.P5, application after hearing both sides as provided under law. Parties shall appear on Ext.P5, application in the court of learned Sub Judge, Chengannur on 30-11-2010.