DEVAKI Vs. CHANDRIKA

JUDGEMENT

(1.) The simple relief prayed for in this appeal is to set aside a non speaking order of dismissal for default of an application, IA 1960 of 1996, filed by the appellant for setting aside an ex parte decree passed against her in OS 163 of 1991 on the file of the Sub Court, Irinjalakuda. However, two important questions, one of jurisdiction of the court and the other of procedure, arise for consideration in this approval.

(2.) Facts required to be stated are thus: The suit OS 163 of 1991 is one filed by the respondents against the appellant and her son who is not a party to the appeal. The first respondent is the mother of the second respondent. Respondents have filed the suit claiming that they are the wife and son of Sasi, one of the sons of the appellant who has been impleaded as a defendant along with her in the suit. The prayer in the suit was for a decree for realisation of a total amount of Rs. 33,801/- being past maintenance for 3 years along with the value of gold ornaments weighing 41/2 sovereigns and the amount of Rs. 5,001/- alleged to be due to the first plaintiff. Originally the suit was filed as an indigent petition (POP 106/89). On receiving notice, the appellant and her son Sasi have entered appearance and filed their objection through a counsel. Later, the POP was allowed and the petition was numbered as OS 163 of 1991. Thereafter, it is the case of the appellant that she never received any information from her Advocate and the suit was decreed ex parte on 13.11.1991. She came to know about the ex parte decree only when she received notice in the EP filed for executing the decree against her. Immediately thereafter the appellant filed IA 1960 and 1961 of 1996 to set aside the ex parte decree and to condone the delay in filing the application to set aside the ex parte decree. On receiving notice, the respondents have filed counter affidavit opposing the prayers in the applications. The applications were posted to 22.7.1997, for examining the appellant. But thereafter the court suo moto advanced the case to 27.6.1997 giving notice to the counsel for the appellant. Even though the counsel for the appellant has send a letter intimating the advancing of the case of 27.6.1997 to the appellant, the same was received by the appellant only on the evening of 27.6.1997. However, when the case was taken up on 27.6.1997, the learned Judge dismissed both the applications for default rejecting the prayer for a short adjournment made by the counsel for the appellant. Aggrieved by the order dismissing IA 1960 of 1991 appellant has preferred this appeal.

(3.) We may first consider the question whether the impugned order is sustainable in law or not. The facts noted above are not in dispute and as such we are of the view that the learned Judge was not justified in dismissing the applications, IA 1960 and 1961 of 1996 rejecting the prayer for adjournment made by the counsel for the appellant. It is a case where the applications were adjourned for the examination of the parties to 22.7.1997 and the court has suo moto advanced the case to 27.6.1997 without issuing notice to the parties directly. The notice of advancing the case was given only to the advocate and the letter send by the advocate was received by the appellant only on the evening of 27.6.1997. As such it is a clear case where the appellant cannot be blamed for her absence in court on 27.6.1997. In the circumstances, we are of the view that it is an order passed without giving the party a sufficient opportunity to prosecute the same and as such liable to be set aside for that reason alone.