Decided on October 04,1968



- (1.) The dismissal of a petition under the Kerala Insolvency Act, hereinafter called the Act or the Insolvency Act, has given rise to this Civil Revision Petition.
(2.) Has the Insolvency Court, inspite of the provisions of S.5 of the Act, power to dismiss a creditor's petition for default Is an order of dismissal for default inspite of the provisions of S.79 of the Act, appealable These two simple questions have to be answered simply in the affirmative, on a fair, commonsense construction of the two relevant Sections already adverted to. Bat does law lose its awe and learned look, if commonsense is used as the compass to guide the Court, unless counsel, as in this case they have done, press precedents into service on the one side and canons of statutory interpretation on the other, to spin out scholarly arguments for and against How ever, often, as in this case the simple route leads to the same end as the complicated one, although the former is preferable, since a simple presentation of the law will make it more easily understood by the litigating public, to regulate whose rights laws are meant.
(3.) A few facts first. A firm of five persons (Petitioners 1 to 5 in I. P. No. 10 of 1965) moved the Insolvency Court for adjudging the debtor first counter petitioner an insolvent. Another creditor got himself impleaded as the 6th petitioner, although the provisions of S.16, prima facie, provide for substitution and not addition. This creditor is the revision petitioner before me, the other petitioning creditors having dropped out from the contest. The debtor resisted the petition and the case was posted for evidence on several occasions, each side having contributed its quota of requests for adjournment. The Subordinate Judge, however, ordered, on 26-11-1966, while directing the adjournment to 12-12-1966, that it would be the last adjournment and on 12-12-1966 he kept his word by dismissing the petition by a short order which runs as follows. "Petitioner absent. Advocates absent. Petition dismissed with costs." An appeal was duly carried to the District Court and was allowed, because the learned District Judge took the view that the petition had been posted "for hearing without taking evidence". I do not understand this obscure expression used by the District Judge "for hearing without taking evidence". If a case is posted for hearing and the stage has been reached for taking evidence, the shape that the hearing would take would be the recording of evidence. It is not as if 'hearing" is the antithesis of "taking evidence". We are making a none too simple system of law labyrinthine by these self created verbal refinements which do not have any semantic significance. I have no doubt that when the Court posted the case for hearing after the deck had been cleared for recording the evidence, the parties were expected to be ready with their evidence and if the petitioner defaulted in doing so he should be treated as a defaulting party and not be comforted judicially by being told that it was posted only for hearing and not for taking evidence. What is more, Shri Krishnankutty Menon, learned counsel for the revision petitioner, assures me and this is not contradicted by counsel on the other side that the records bear out his case that the petition was posted for evidence and not, as the learned District Judge misunderstood, "for hearing without taking evidence.";

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