KAMARUDDEEN Vs. THENNADAN MUHAMMED ALIAS KUNHAPPA

JUDGEMENT

(1.) PETITIONER is second respondent/second defendant in CMA 36 of 1998 on the file of Additional District Court, Manjeri and O.S.613 of 1989 on the file of Munsiff Court, Manjeri. Respondent is the plaintiff. The suit was dismissed for default on 13.12.1996, as it was in the special list and respondent remained absent. Respondent filed I.A.119 of 1997, an application under Order IX Rule 9 of Code of Civil Procedure to restore the suit contending that as he was laid up from 12.12.1996 to 14.12.1996, he could not appear before the court on 13.12.1996 and therefore the suit is to be restored. PETITIONER filed an objection contending that respondent was not laid up and he was not hospitalised and there is no sufficient reason for his absence or to restore the suit. As per order dated 17.11.1998, learned Munsiff dismissed the application. Respondent challenged the order before District Court, Manjeri in CMA 36 of 1998. Learned District Judge reappreciation of evidence, found that respondent is aged 65 years and evidence of PW2, the Doctor establish that he was suffering from blood pressure and was under the treatment of the Doctor and hence there is sufficient reason for his absence, when the suit was dismissed for default and allowed the appeal and restored the suit, on payment of cost of Rs.1000/-. This revision petition is filed challenging that order.

(2.) LEARNED counsel appearing for petitioner and first respondent were heard. The argument of learned counsel appearing for petitioner is that there is no sufficient reason for the absence of the petitioner when the suit was dismissed for default and on the evidence, learned District Judge should not have interfered with the finding of learned Munsiff and restored the suit. On hearing learned counsel appearing for the petitioner and first respondent and on going through the orders passed by the learned Munsiff and learned District Judge, it is clear that District Judge has considered the question in the proper perspective. The suit was in the special list on 13.12.1996. The evidence of PW2, the Doctor corroborates the evidence of PW1 that he was under the treatment of the Doctor. The learned District Judge, on the facts found that there is sufficient cause for the absence of the petitioner, when the suit was dismissed for default. In such circumstances, in the interests of justice, the suit was restored on payment of cost of Rs.1000/-. The order is perfectly legal and regular I find no reason to interfere with that order in exercise of the revisional jurisdiction of this court under Section 115 of Code of Civil Procedure. CRP is dismissed.