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2012 DIGILAW 1062 (KER)

Selvaraj v. Vasudevan Balakrishnan

2012-12-06

A.V.RAMAKRISHNA PILLAI, THOTTATHIL B.RADHAKRISHNAN

body2012
JUDGMENT Thottathil B. Radhakrishnan, J. Defendants 26 and 27 in a suit to set aside a document and for partition are the appellants. They were impleaded by the plaintiff on the allegation that they were assignees of the third defendant. When the suit was decreed ex parte, they applied to have ex parte decree set aside. They also sought condonation of delay in making such application. It is true, as rightly pointed out by the learned counsel for the plaintiff, that the delay in applying to set aside the ex parte decree is more than 1700 days. 2. However, the fact of the matter remains that the present grievance of defendants 26 and 27 who have filed this original petition invoking Article 227 of the Constitution is that they were, in fact, not heard in relation to the applications seeking condonation of delay and to have ex parte decree set aside. They plead that after a long lapse of time, they see that their applications were dismissed as "withdrawn". The certified copies of the applications to set aside the ex parte decree and for condonation of delay do not contain any endorsement that those applications are "withdrawn". Not only that, in the case in hand, going through the records, we see that there are serious allegations even against members of the bar, particularly, in the context of the fact that many of the parties to this litigation are themselves advocates. 3. The learned counsel for the petitioners (defendants 26 and 27) made reference to Circular No.28/68 and the judgment of this Court in Kannan v. Lakshmi (1970 K.L.T 731) wherein, Justice V.R.Krishna Iyer, as he then was, noted that, that case was an instance which illustrates mischiefs, contemplated in the foresaid Circular meant for guidance of the subordinate courts when admissions or concessions were made by advocates during the course of proceedings. 4. Be that as it may, we proceed to consider certain other relevant legal issues. 5. Section 141 of the Code of Civil Procedure, 1908, for short, the 'Code', provides that the procedure provided in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction. Be that as it may, we proceed to consider certain other relevant legal issues. 5. Section 141 of the Code of Civil Procedure, 1908, for short, the 'Code', provides that the procedure provided in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction. The application under Order IX Rule 13 and application under section 5 of the Limitation Act in relation to the application to set aside the ex parte decree are proceedings which fall within the ambit of section 141 CPC. Reverting to Order XXIII Rule 1, it is the requirement of law that abandonment or withdrawal of any claim (in this case, the relief of having ex parte decree set aside after condoning the delay to apply for such relief) could have been done only with notice to the other parties. In the context of Order XXIII Rule 1, it is apposite to refer to Rule 148 of Civil Rules of Practice, Kerala, which enjoins that notice of an application for leave to withdraw from a suit, shall be given to all parties who have appealed. The essence of these provisions is that withdrawal of an application from a court is not an empty formality. It has also to be remembered that the consequences that follow from withdrawal or abandonment, with or without leave, have classic importance; may be, even with disastrous consequences; including of being deprived of a right to sue. 6. With the aforesaid in mind, examining the matters on record as already noted, there is nothing to show that the withdrawal was as authorized by defendants 26 and 27. Their applications, which stand dismissed as withdrawn, were eligible to be proceeded with on their merits. The impugned orders result in manifest miscarriage of justice and they deserve to be set aside to pave way to justice in accordance with law. In the result, the impugned Exts.P5 and P6 are quashed and the court below is directed to take up the applications on which those orders were passed; proceed with those applications, giving opportunity to all parties concerned and decide on those applications, in accordance with law. In the result, the impugned Exts.P5 and P6 are quashed and the court below is directed to take up the applications on which those orders were passed; proceed with those applications, giving opportunity to all parties concerned and decide on those applications, in accordance with law. We have not expressed anything on the grounds or defence as regards the application under Order IX Rule 13 CPC or the one filed along with that in terms of section 5 of the Limitation Act. The original petition is allowed accordingly, leaving open all other issues.