RAMACHANDRAN Vs. RAVEENDRAN

JUDGEMENT

(1.) The petitioners are the plaintiffs and the respondents are the defendants in O.S.No.310 of 2017 on the files of the Munsiff court, Thiruvalla. The suit was filed for mandatory as well as prohibitory injunction. The respondents were made ex parte on 29/6/2019 and posted to 22/7/2019 for ex parte evidence. On 16/8/2019, since the plaintiff was absent and there was no representation, the suit was dismissed for default. On coming to know that the suit was dismissed for default, R.P.No.39 of 2022 was filed under Order 9 Rule 9 CPC to set aside the dismissal for default. Since there was a delay in filing the application, I.A.No.1 of 2022 was also filed to condone the delay of 1048 days in preferring the application to restore the suit. The court below, by a common order dtd. 30/1/2024, dismissed both the applications by Ext.P7 order. The petitioners have approached this Court, under Article 227 of the Constitution of India, to call for records leading to Ext.P7 and to set aside the same.

(2.) The counsel for the petitioners, Shri.Arjun S, argued that when an application under Order 9 Rule 9 CPC is filed to set aside the dismissal for default and if sufficient cause is shown, the trial court ought to have taken a pragmatic justice-oriented approach and allowed the same. The application to restore the suit was filed with a petition to condone the delay and the petitioners have shown sufficient cause in not approaching the court within the time prescribed. The court below should have condoned the delay and restored the suit. The suit was posted for ex parte evidence on 16/8/2019. The petitioners were stationed in Rajasthan, and because of floods in August 2018, they could not appear before the Court, so the suit was dismissed for default. By then, COVID19 had spread throughout the country, and the petitioners could not travel to Kerala and were not informed about the dismissal of the suit for default.

(3.) The apex court in suo motu Writ Petition ((THELAW)) No.3 of 2020, excluded the period from 15/3/2020 till 28/2/2022 for the purpose of limitation. Therefore, the abovementioned period should have been excluded while calculating the delay.