JOSEPH JOHN Vs. JOSEPH

JUDGEMENT

(1.) THE respondents in I. A, 716 of 1999 and 717 of 1999 in o. S. No. 53 of 1996 on the file of the Subordinate Judge's Court, Thodupuzha are the revision petitioners. THE judgment passed by the District Court, thodupuzha in C. M. A. 4 of 2000, reversing the order passed by the trial court and allowing the petitions is under challenge in this revision petition.

(2.) O. S. No. 53 of 1996 before the trial court was filed by the revision petitioner against the respondents on 21. 3. 1996, claiming damages for committing trespass and waste in the plaint schedule property. Since the respondents/ defendants did not file any written statement after several adjournments, the trial court set them exparte on 20. 2. 1998 and posted the suit for evidence to 27. 2. 98 and on that day an exparte decree was passed against the respondents. The respondents filed I. A. 272 of 1998 on 21. 3. 1998 under S. 151 of the CPC to set aside the exparte order dated 20. 2. 98 passed against them. That petition underwent several adjournments and ultimately on 27. 3. 1999, the trial court dismissed that I. A. , holding that there is no prayer in the I. A. to set aside the exparte decree. Thereafter the respondents filed I. A. 716 of 1999 under S. 5 of the Limitation Act to condone the delay in filing the petition to set aside the exparte decree and I. A. 717 of 1999 under o. IX R. 13 of CPC to set aside the exparte decree. After enquiry, the trial court dismissed both the applications by order dated 8. . 12. 1999 finding that the respondents have not made out sufficient cause to set aside the exparte decree and the petitions have been filed without bonafides. The respondents preferred CMA 4 of 2000 before lower appellate court challenging the above order. The lower appellate court by the impugned judgment, allowed the petitions on payment of cost of Rs. 5000/-by the appellant within 15 days of the order and directed on payment of cost before the trial court the exparte decree will be set aside and also directed the trial court to dispose of the suit as early as possible.

(3.) THE counsel for the revision petitioner submitted that under O. IX R. 13 of the CPC, the court has got jurisdiction to set aside the decree passed exparte, only if the petitioner satisfied the court that he was prevented by any sufficient cause from appearing, when the suit was called on for hearing upon such terms as to costs which the court thinks fit. THErefore it is submitted that in view of the clear finding by the lower appellate court that there was gross negligence on the part of respondents and they have not adduced any evidence to establish that they were prevented from appearing before the court due to any sufficient cause, the lower appellate court had no jurisdiction to set aside the exparte decree on payment of costs to the revision petitioner by reversing the findings of the trial court.