J U D G M E N T

In this case the plaintiff in O.S.No.505/2008 on the file of Sub Court, Alappuzha, impugns common order dated 27.06.2017 in I.A.Nos.224/2017 and 225/2017 in the above Suit. The respondent herein is the defendant in the Suit.

2. Heard Advocate K.C.Sudheer, the learned counsel for the petitioner (plaintiff in the Suit) as well as Advocate K.S.Hariharaputhran, the learned counsel appearing for the respondent (defndant in the Suit).

3. It is submitted by the learned counsel for the petitioner that the court below condoned delay of 2221 days by allowing I.A.No.224/2017 and I.A.No.225/2017 to restore I.A.Nos.1102/2010 and 1101/2010. It is submitted by the learned counsel for the petitioner that no reason or sufficient cause stated in the affidavit in support of I.A.No.224/2017 to condone the long delay of 2221 days.

4. On the facts of this case, O.SNo.505/2008 was decreed exparte on 13.11.2009. Thereafter, the defendant/respondent herein filed I.A.No.1103/2010 to set aside the exparte order. I.A.No.1102/2010 also was filed to condone delay of 72 days in filing I.A.No.1103/2010. The above applications were dismissed for default on 18.03.2011. Thereafter the defendant filed I.A.No.664/2011 and 665/2011 to restore the said applications and I.A.No.664/2011 is one filed to condone delay of 12 days in filing I.A.No.665/2011.

5. Thereafter on 09.10.2013, the above applications were dismissed for default. Thus the defendant filed I.A.No.1168/2013 to restore the said applications and the said application also was dismissed for default on 13.03.2014.

6. While so, the plaintiff filed I.A.No.397/2014 under Section 28 of the Specific Relief Act and after effecting service of notice by affixture and paper publication, sale deed was executed on 16.03.2018 and thereafter the property also was delivered to the plaintiff.

7. Subsequently, the defendant/respondent herein filed I.A.No.506/2016 to restore I.A.No.1168/2013 after condoning delay of 820 days. The delay application is I.A.No.505/2016. 8. According to the learned counsel for the petitioner, while I.A.505/2016 and 506/2016 were pending, as instructed by the court below, after dismissing those I.As, I.A.Nos.224/2017 and 225/2017 were filed. Further, the learned counsel for the petitioner urged that even going by the narration in the affidavit in support of I.A.No.224/2017, there is no sufficient cause or any justifiable reason otherwise stated. However, the learned Sub Judge shown much leniency, without justification, and thereby I.A.Nos.224/2017 and 225/2017 were allowed and in consequence thereof, I.A.No.1102/2010 and 1103/2010 were restored to file and are under consideration of the learned Sub Judge.

9. It is submitted by the learned counsel for the respondent/defendant in the Suit that after setting aside a defendant exparte decree, when the case was posted for exparte evidence, the plaintiff was absent and accordingly the Suit was dismissed for default. Thereafter, the plaintiff filed I.A.No.1392/2009 to restore the application without serving notice to the defendant, either personally or through his counsel. He submitted further that an endorsement was made in the said petition to the effect that since the defendant was set exparte prior to dismissal of the Suit, no notice need be issued. The learned Sub Judge accepted the said endorsement and consequently restored the Suit without issuing notice to the respondent herein, which led to passing of the exparte decree later. It is submitted further that as provided under Order 9 Rule 9 of the Code of Civil Procedure, before setting aside an order of dismissal of Suit, notice to the opposite party is mandatory. He has given emphasis to Order 9 Rule 9(2) of the Code of Civil Procedure. For clarity, Order 9 Rule 9(1) and (2) of C.P.C are extracted hereunder:

9. Decree against plaintiff by default bars fresh suit:--(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit