SUBRAMANIA IYER Vs. VALSALA

JUDGEMENT

(1.) The revision petitioner is the plaintiff in O. S. No. 150 of 1998 of the Sub Court, Ernakulam. The challenge is with regard to the order of the said Court passed in I.A. No. 3206 of 1999 which was a petition for setting aside the ex parte order against the 1st defendant. Notwithstanding stiff opposition from the plaintiff, the petition was allowed as per the following order:

(2.) The suit was for recovery of Rs. 13 lakhs based on dissolution of a firm. When the suit came up for return of summons on 1.6.1998 it was represented that both the defendants were entering appearance; and the case was adjourned to 30.1.1999. But even by that day the respondent herein, who was the first defendant, had not filed vakalath. On 19.2.1999 the plaintiff, as per directions from the Court, paid a sum of Rs. 79,815/- as balance court fees. On 22.2.1999 when the case came up next there was no representation for the first defendant and consequently she was declared ex parte. On 4.3.1999 the second defendant filed written statement and after postings to 8.3.1999, 16.6.1999 and 23.6.1999 the case was listed for trial to 9.8.1999. On 7.8.1999 the first defendant filed I.A. No. 3206 of 1999 aforementioned seeking to set aside the ex parte order. A statement was also filed before the Court adopting the contentions in the written statement of the second defendant. On 10.8.1999 she also filed I.A. No. 3241 of 1999 seeking reference of the dispute to arbitration.

(3.) Mr. R. D. Shenoi, who appeared for the revision petitioner submitted that the application filed by the first defendant is without bona fides; that she has not shown good cause for the non appearance on the posting dates and that the consequence of allowing the petition will be to give an opportunity to the first defendant to seek reference of the dispute to arbitration and that this will seriously prejudice the plaintiff in so far as consequent on the silence on the part of the first defendant the plaintiff was forced to pay a sum of Rs. 79,815/- as court fees which could have been avoided if only the written statement and request for arbitration were filed in time. It is also pointed out in this regard that the first defendant has failed to raise the question of arbitration at the earliest opportunity and also that without producing the original arbitration agreement the request of the first defendant cannot be considered.