SADANANDAN Vs. DHANALAKSHMY

JUDGEMENT

(1.) THESE revisions are directed against the common judgment dated 30th November, 2001 of the First Additional District Judge, Kollam in CMA Nos. 745 and 746 of 2001. The revision petitioner was the plaintiff in O. S. No. 720/98 on the file of the Additional Munsiff Court, kollam and the 1st defendant in O. S. No. 734/98. The suit, O. S. No. 720/98 was dismissed for default and O. S. No. 734/98 was decreed ex parte. The petitioner moved I. A. No. 493/01 for restoration of the suit under O. IX, R. 9 of the Code of Civil Procedure. He also moved an application for setting aside the ex parte decree in O. S. No. 734/98 under O. IX, R. 13 of the Code of Civil Procedure. Both the applications were heard together and by a common order, dated 16th October, 2001 the learned additional Munsiff dismissed both the applications. Aggrieved by the common order the petitioner preferred CMA Nos. 745 and 746/01 before the District judge, Kollam and the 1st Additional District Judge, Kollam, by the impugned common judgment dismissed both the appeals.

(2.) THE suits, O. S. Nos. 720 and 734/98, were ordered to be tried jointly and the suits were listed for trial on 5th January 2001. On that day the petitioner could not appear before the court since he was laid up. THE trial court adjourned the case to 12th January 2001. Since the petitioner was absent on that day O. S. No. 720/98 was dismissed for non-appearance of the petitioner and O. S. No. 734/98 was decreed ex parte. According to the petitioner, on 5th January, 2001 when the suits were posted for trial in the special list, he could not appeal before the court and adduce evidence as he was suffering from pneumonia and admitted in the Lekshmi Clinic, paravoor. He was discharged from the hospital only on 13th January 2001 and, therefore, he could not give instructions to his lawyer.

(3.) IN G. P. Srivastava v. R. K. Raizada, (2000) 3 SCC 54, the Supreme Court held that the expression "was prevented by any sufficient cause from appearing" occurring in O. IX, R. 13 CPC must be liberally construed, where the defence is reasonable, defendant approaches the court for setting aside the ex parte decree within statutory period and non-appearance is not mala fide or intentional. IN this case the petitioner has moved the applications within the period of limitation. There is nothing on record to indicate that the non-appearance of the petitioner was mala fide or intentional. Under these circumstances the lower courts should have found that the petitioner was prevented by sufficient cause from appearing before the court. I see no reason why the applications should not be allowed. IN the result, the impugned orders are set aside and I. A. No. 493/01 in O. S. No. 720/98 and I. A. No. 492/01 in O. S. No. 734/98 on the file of the Additional Munsiff Court, Kollam are allowed. However I make no order as to costs. . .