BALACHANDRAN NAIR Vs. SIMON, S/O.YESU VAIDYAN

JUDGEMENT

(1.) Under challenge is Ext.P10 whereby the court below passed an order as follows: As pointed out by counter petitioner he is the most aggrieved person. Even then considering the fact that petitioner/respondent has not advanced their argument when appeal was finally posted for hearing. Hence it is only just and proper to give an opportunity to petitioner provided she shall redressing the grievances of Counter Petitioner/appellant by paying cost of Rs.3000/ -. Pay cost and call on 18. -12 -2014.

(2.) The grievance of the petitioner is that the judgment was pronounced and after having pronounced the judgment, the court was not competent to re -open for hearing the case and allowing one of the parties to address argument with regard to the appeal in question. The remedy, if at all any, available was to file an appeal by the aggrieved party or to file a proper petition to have the exparte decree set aside in accordance with the relevant provisions of the C.P.C. Having not done so and having filed a petition under Order XLI Rule 19 which does not apply to the fact of the case at all and order being passed on the same, such an order cannot be sustained.

(3.) The learned counsel appearing for the petitioner also referred to the B Diary and pointed out that the matter was heard on several occasions and since the judgment was not ready, formal postings were made. It is not as if that the respondents before this Court were not heard. They were heard on earlier occasion so that the observation of the court below that the respondents were not heard is also not correct. At any rate, a petition under Order XLI Rule 19 cannot lie and order passed thereon cannot be sustained. It is therefore pointed out that the order is to be set aside.