KOCHUVELU Vs. VARKEY
LAWS(KER)-1968-2-6
HIGH COURT OF KERALA
Decided on February 09,1968

KOCHUVELU Appellant
VERSUS
VARKEY Respondents

JUDGEMENT

- (1.) The revision petitioner's the first defendant in O. S. 246/59 in the court of the Munsiff of Vaikom. Against him the suit was filed by the plaintiff for recovery of plaint items 1 and 2. At first, a decree was passed by the learned Munsiff granting recovery of item No. 1 and dismissing the suit in respect of item No. 2. Against that decree, the plaintiffs filed A. S. 204/62 in the District Court of Kottayam. There, an amendment of the plaint claiming an easement right over item No. 2 was also sought and that was allowed by the appellate court and the suit was remanded to the court below for a de novo trial and disposal. The case came up for trial on 19-2-1964, on which date the plaintiffs prayed for time which was refused and the suit was dismissed. From that decision the plaintiffs again filed an appeal, A. S. 196/64. The petitioner stated before the appellate court that he has no objection in the dismissal being set aside and accordingly the decree dismissing that suit was set aside and the case was remanded again. After remand the case was posted to 28-1-1967. On that date the suit was decreed ex parte on the ground that the defendant was not present when the case was called on for hearing. I. A. 935/67 was filed by the petitioner for a review of the judgment. That was dismissed and it is against that order that he has come up in revision.
(2.) Learned counsel for the respondents raised the objection that a review does not lie in the circumstances of the case; Such a preliminary objection ought to have been taken before the court below. Any way, in the matter of an ex parte decree, three remedies are open to the defendant and they are: i) by way of a restoration application; ii) by way of an appeal from the decree; and iii) by way of a review.
(3.) The defendant in this case availed himself of the last mentioned relief. The contention, therefore, that review is not maintainable, cannot be sustained. The question has, therefore, to be considered on the merits so as to see whether the grounds stated are maintainable. The suit covers two items, of which item No. 2 is the right of easement claimed along the property of the defendant. The learned Munsiff in decreeing the suit has not bestowed sufficient thought on this aspect, viz., the right claimed, is in the nature of an easement. The result of granting the prayer would be to allow the plaintiffs to cut a water channel along the property claimed by the petitioner as his, for taking his canoe along the channel. In the nature of the right claimed, it was incumbent on the court to scrutinise the matter with some more care, in the light of the evidence already produced in the case. The documents produced ought to have been scrutinised carefully so as to see whether the right claimed is well founded. Even though the defendant is ex parte, the duty is still there, on the part of the plaintiffs to prove a prima facie case in support of their claim (Vide Ghulam Hussain v. Singer Sewing Machine Company AIR 1926 Oudh 192 ). To the same effect is the ruling in Manmatha Kumar Ray v. Josada Lal Fodder AIR 1924 Cal. 647 . The learned Judges observed in that case that:-- "Even if a case is heard ex parte, it is the duty of the court to consider the interest of the absent party and not to pass a decree except on proof by the plaintiff that he is entitled to that decree." It was the duty of the learned Munsiff to have warned the plaintiffs that in the nature of the right claimed by them they had a produce good evidence in support of it. The following observation, appearing in Sheonarayan Harlal Maheshwari v. Kanhaiyalal Devidin ( AIR 1948 Nag, 168 ) is pertinent in this connection:-- "Where the defendant does not appear and the court requires the plaintiff to adduce prima facie evidence, the court ought to warn the plaintiff that such evidence as he has adduced, is not in the opinion of the court sufficient to establish a prima facie case. Unless this is done dt is evident that a plaintiff would be bound to adduce all his evidence and examine his witnesses as fully as he would, in a defended case. The whole idea is that the judge should take just enough evidence to satisfy himself that a prima facie case has been established. But in any event, the Judge should at least tell the plaintiff how much evidence he required." My conclusion, therefore, is that so far as item No. 2 is concerned the revision petitioner has got a good case for review. The above decision of the Nagpur High Court is also helpful for the position that this Court sitting in revision can interfere in a matter like this. The learned Judges in that case ( AIR 1948 Nag. 168 ) would observe that: -- "High Court is precluded from interference under its revisional powers on ground of mistake of law. But ft is not so precluded on question of practice which goes to the root of the trial." In the present case, the practice that is relevant is that in a case where the defendant is ex parte, the 'court has a duty still to analyse the evidence available on record and come to a decision so that the interest of the absenting party is also protected; but in vacating the decree as against item N. 2, I must observe that the petitioner defendant must compensate the plaintiffs for his laches.;


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