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Judgment
Thomas P. Joseph, J.—This Original Petition is in challenge of the order dated 01.11.2012 on I.A. Nos. 623 and 624 of 2010 in O.S. No. 101 of 2009 of the Sub Court, Neyyattinkara. Grievance of the petitioners is that the said applications were decided by the learned Sub Judge without hearing them. Petitioners filed O.S. No. 101 of 2009 on 22.05.2009 for a declaration, cancellation of certain documents and other reliefs. I.A. No. 760 of 2009 filed by the petitioners for temporary injunction was allowed against which respondents 2 and 3 filed F.A.O. No. 298 of 2009. That appeal was dismissed on 13.11.2009 directing the trial court to dispose of the suit before 31.03.2010. Respondents 2 and 3 challenged that judgment in SLP No. 2201 of 2010 but the SLP was dismissed. The suit was posted for trial in the list on 01.03.2010. Since the respondents were not present, an ex parte decree was passed. That was followed by the 1st respondent filing I.A. No. 624 of 2010 and respondents 2 and 3 filing I.A. No. 623 of 2010 to set aside the ex parte decree.
Those applications were posted for return of notice on 18.06.2010. Petitioners preferred objection to the said applications. Those applications were allowed by Exts.P11 and P12, orders dated 01.11.2012.
It is submitted by the learned counsel for the petitioners that petitioners were not heard on the said applications. It is stated that the learned Sub Judge was sitting only on Tuesdays and Thursdays and that only urgent civil matters were being heard on those days. After petitioners preferred their objection to I.A. Nos. 623 and 624 of 2010 there were 22 postings for those applications, but the matter was not taken up for the reason aforesaid. On 01.11.2012 the applications were taken up (without notice to the petitioners) and allowed as if the petitioners were not represented.
The learned counsel for the contesting respondents would say that it is incorrect to say that the applications were taken up abruptly on 01.12.2012 without notice to the petitioners. According to the learned counsel, petitioners were absent on various days when the applications were taken up for hearing. Whatever be the reason, it is seen that I.A. Nos. 623 and 624 of 2010 are allowed by the learned Sub Judge without hearing the petitioners. It is also seen from Exts.P11 and P12, orders that the learned Sub Judge has simply observed that there is no representation for the petitioners (respondents-plaintiffs in the applications), they are called, found absent, the matter is heard and the applications are allowed. The orders do not say that the learned Sub Judge was satisfied of the existence of sufficient cause to set aside the ex parte decree even if it is assumed that petitioners remained absent on 01.11.2012. Learned Sub Judge had to enter a finding that there was sufficient cause to set aside the ex parte decree. Exhibits P11 and P12, orders do not reveal that any such satisfaction was arrived at by the learned Sub Judge. In the circumstances I am inclined to interfere with Exts. P11 and P12, orders but without making any observation on the merit of the contentions.
Resultantly, the Original Petition is allowed as under:
(i) Exhibits P11 and P12, orders are set aside and I.A. Nos. 623 and 624 of 2010 in O.S. No. 101 of 2009 are remitted to the Sub Court, Neyyattinkara for fresh decision after hearing both sides.
(ii) The learned Sub Judge is directed to expedite disposal of the applications having regard to the direction made in the judgment in F.A.O. No. 298 of 2009 regarding disposal of the case.