(1) When a suit is dismissed as not pressed, can such a decree be set aside under Order IX Rule 9 of the Code of Civil Procedure?

(2) In such a case, when the counter claim is decreed, can such a decree be set aside under Order IX Rule 13 of the Code of Civil Procedure?

(3) Can the approach made by the court below in condoning the delay of 2180 days in filing the IA under Order IX Rule 13 of the Code of Civil Procedure, be termed as exercise of judicial discretion?

2. Ext.P4 common order passed by the court below, by which the court below has chosen to restore the suit and to set aside the decree of dismissal of the suit as well as the decree passed in the counter claim after condoning the delay of 2180 days, is under challenge.

3. The respondent herein, as plaintiff, had filed O.S.No.94 of 2008 before the court below for getting the settlement deed and the release deed, which were executed in favour of the petitioner herein, set aside. In the written statement, the petitioner herein, who was the defendant in the said suit, had set up a counter claim. The suit ultimately came up in the list on 29.09.2008. At that stage, the learned counsel for the plaintiff filed a memo before the court below stating that the suit was not pressed. In the light of it, the court below had dismissed the suit, and decreed the counter claim.

4. Subsequently, the son of the respondent herein filed O.S.No.287 of 2012 by challenging the aforesaid two documents highlighting the ground that even though his mother had filed a suit as O.S.No.94 of 2008, the said suit happened to be dismissed due to the absence of the plaintiff and counter claim happened to be decreed by declaring the cancellation deed as null and void. The son further averred in the plaint that his mother, who is the respondent herein, was incapable of filing a suit because of her old age. In the aforesaid suit filed by the son, the present respondent was examined as PW2. The court below found that PW2 was very accurate and vigilant in giving proper answers to the questions put to her and it could not be said that the respondent herein was incapable of filing a suit before court. O.S.No.287 of 2012 was dismissed by the court below through Ext.P5 judgment dated 9.10.2014. Immediately, after that, IA Nos.2609/2014 and 2608/14 in question were filed on 17.10.2014.

5. The court below, after considering the said IAs, has arrived at a conclusion that "the petitioner lacks bona fides and reasons stated in the petition is not sufficient to allow the petition." After making the said observations, the court below has passed the following order. "Even though in the interest of justice, IA Nos.2609/2014 and 2608/14 are allowed on costs of 4,000/-, for the inconvenience caused to the respondent."

6. Heard the learned counsel for the petitioner Sri. Sathish Ninan and the learned Senior Counsel for the respondent, Smt. Sumathy Dandapani.

7. The learned counsel for the petitioner has canvassed mainly two arguments. Firstly, the dismissal of the suit could not have been considered as a dismissal under Order IX Rule 8 of the Code of Civil Procedure and the passing of the decree in the counter claim could not have been treated as an exparte decree within the meaning of Order IX Rule 13, when the suit was dismissed as well as a decree was passed on a specific admission from the plaintiff that the suit was 'not pressed'. Secondly, it has been argued that the court below has found that the respondent herein lacks bona fides and the reasons stated in the petition were not sufficient to allow the petition and thereafter the discretion exercised by the court below by allowing the IAs on cost cannot be treated as an exercise of the discretion judiciously. It is also argued that by filing a memo stating that the suit was 'not pressed', the plaintiff had made a clear admission before the court below that the suit could be dismissed and the counter claim could be allowed and therefore, the plaintiff cannot later with