NOOR MOHAMMED Vs. MOIDEEN RAWTHER

JUDGEMENT

(1.) Defendant in O.S.No.409 of 2007 of the court of learned Principal Munsiff, Palakkad is the petitioner before me. Respondent, his brother alleging that he permitted petitioner to reside in the building in the suit property sued for mandatory injunction, damages for unlawful use and occupation and other reliefs. Petitioner claimed right of Kudiyiruppu and title by adverse possession. The case came up for trial in the list on 03-03-2009. Petitioner remained absent and there was no representation. The suit was decreed ex parte. Petitioner filed I.A.No.1306 of 2009 to set aside the ex parte decree on 30-03-2009. Application was dismissed on 06-06-2009. Petitioner preferred C.M.A.No.89 of 2009 and the same was dismissed. Hence this revision under Section 115 of the Code of Civil Procedure (for short, "the Code"). Learned counsel contended that petitioner may be given opportunity to contest the case and that he has valid contentions to be raised in the case. Learned counsel for respondent contended that on prior occasions also ex parte decrees were passed and set aside in favour of petitioner. Attempt of petitioner is to somehow prolong execution and continue in occupation of the building without payment of fee.

(2.) It is not disputed before me that on two prior occasions the case was decreed ex parte and it was set aside in favour of petitioner. On the third occasion also request to reopen the case was made. According to the petitioner, on account of fever and chest pain he was not able to appear in court. Regarding that no evidence, oral or documentary was produced by petitioner. He did not mount the witness box. Learned Munsiff found that in such a situation, request to reopen the case on the third occasion cannot be allowed. The appellate court has observed that no indulgence can be shown to the petitioner taking into account the fact that on prior occasions also ex parte decrees were passed.

(3.) This court in Abdul Khader Vs. Surburban Chit Funds (P) Ltd (2006(1) KLT 749) has stated that lethargy on the part of litigants in conducting cases cannot be corrected at later stages by approaching the superior courts. Here is a case where contentions raised by petitioner against his brother is Kudiyiruppu and title by adverse possession. I stated that on prior occasions suit was decided ex parte but reopened in favour of the petitioner. I also stated that as regards the contention that petitioner was laid up due to fever and chest pain no evidence whatsoever was produced. Courts below were not impressed by the contention and reopened the case on third occasion. I do not find reason to interfere.