JAYAKUMARI Vs. NAZAR

JUDGEMENT

(1.) Petitioner is the defendant in a suit for specific performance, in which, an ex parte decree was passed against her by the learned Sub Judge, Attingal. She had filed a written statement in answer to the plaint claim but belatedly with an application to condone the delay, for accepting such statement. Though the delay was not substantial the cause pleaded to receive the written statement was found not appealing to the learned Sub Judge, and hence the request made was rejected. An ex parte decree was later passed against her, and she, thereupon, moved an application for setting aside that decree. Adverting to the orders passed over the non-acceptance of the written statement, the learned Sub Judge turned down her application for setting aside the ex parte decree, which was stoutly opposed by the respondent/plaintiff. As against the orders passed turning down the application for setting aside the ex parte decree and also those orders, which have been passed earlier, while the suit was pending, declining the request of the petitioner/defendant for acceptance of the written statement condoning the delay, she has filed the original petition invoking the visitorial jurisdiction of this Court. I heard the learned counsel for the petitioner. As against the order dismissing the application for setting aside the ex parte decree, petitioner has a statutory remedy to prefer an appeal as provided under Order XLIII Rule (1)(d) of the Code of Civil Procedure, for short, the 'Code' is not a matter of doubt. In such proceedings, the orders passed by the court before termination of the suit by passing of the ex parte decree at the most are relevant only for considering the 'bona fides' and 'conduct of the party' moving for setting aside the ex parte decree. In a case where the party has received the summons or knowledge of the suit before passing of the ex parte decree what transpired when the suit was pending which ultimately led to passing such ex parte decree, may have some significance in judging the merit of the application moved by the party (defendant) in showing of sufficient cause why such decree has to be set aside. Otherwise such orders cannot be given unmerited consideration in evaluating the 'sufficient cause' which the applicant has to establish for setting aside the ex parte decree passed against him. I have dilated on the above aspect since the learned counsel for the petitioner fairly conceding that the statutory appeal is available, has submitted that he has resorted to the filing of original petition invoking the jurisdiction of this Court since some observations have been made in the order impugned dismissing his application with reference to the orders passed over the non-acceptability of the written statement filed by him when the suit was pending before the court. Even if the ex parte decree were set aside in the appeal challenging the order of the court below, according to the counsel, the previous orders passed may continue to operate causing prejudice to the party, and if that be so, as the suit is one for specific performance, she would be precluded from raising any challenge to resist the suit claim. I find no reason for the apprehension so canvassed. In an appeal preferred against the order of the court below dismissing an application for setting aside the ex parte decree the petitioner can very well canvass the circumstances which transpired earlier to seek the indulgence of the court for issuing appropriate directions/orders for receiving her written statement as well, though belatedly filed, to have reasonable opportunity for disposal of the suit on its merit, which, however depends on the entitlement of the party to set aside the ex parte showing sufficient cause thereof. So much so, the petitioner can very well file an appeal against the order dismissing her application for setting aside the ex parte decree by way of appeal as provided by the Code and seek appropriate reliefs in such appeal. Reserving the right of the petitioner to do so, the original petition is closed.