The judgment establishes that a court should err on the side of justice when considering setting aside ex parte decrees, especially when substantial rights may be at stake.

O R D E R

The additional 2nd defendant in O.S.No.688/2002 on the file of the Munsiff's Court, Nedumangad has filed this Revision Petition challenging the order dated 03.10.2013 of the Sub Court, Nedumangad in C.M.A.No.19/2010. The facts in brief are thus:

The 1st respondent filed O.S.No.688/2002 for an injunction restraining the 2nd respondent in this petition from trespassing into the plaint A-Schedule property, destroying its boundaries or committing any waste therein. Injunction was also sought to restrain the defendant from causing any hindrance or obstruction to the plaintiff using B-Schedule for ingress and egress to A-Schedule property having an extent of 13 cents in R.S.No.1544/1 of Nellanad Village, from Venjaramoodu- Kilimanoor Road, which passes along the northern side of the 2nd respondent's property and has a width of one metre and a length of 55 metres.

2. The 1st defendant filed a written statement contending that B-Schedule pathway as alleged, is not in existence. He was the owner in possession of 55.59 Ares of land lying on the south of A-Schedule property, and the property of the Local Panchayat used as a market place, lying on the west of the A-Schedule property.

3. Despite filing a written statement challenging the right of the plaintiff, the 2nd respondent did not contest the suit, and sold the property to the revision petitioner, who was impleaded as additional 2nd defendant in the suit. The revision petitioner met the 1st defendant and enquired about the details of the pending suit and she was made to believe that the suit is not concerning the property sold to her and that he has already filed a detailed written statement, and would contest the suit. On the assurance given by him that the suit would be properly defended, the revision petitioner, however, engaged a lawyer to defend herself in the suit.

4. The petitioner who was undergoing treatment for infertility and the consequential stress, could not advice her Counsel appropriately. Thereafter, petitioner delivered her first born child in December, 2005 and soon become pregnant again and in the second time she delivered triplets in December, 2006. Accouchement and the burden to fend for her four infants took a toll of her physical as well as a mental condition, preventing her from paying due attention to the pending litigation or contact her Counsel to ascertain the progress made in the suit. The 1st defendant also did not appear, as a result of which, the suit was dismissed exparte on 09.06.2005. The revision petitioner was totally in dark about the dismissal of the suit. Due to the financial difficulties, the revision petitioner also sold the property to Shylaja Nair and Sreekantan Nair. The plaintiff in the suit attempted to trespass into the property and therefore the said Shylaja Nair and her husband filed O.S.No.731/2008 for an injunction against him. In that suit, it was revealed that an exparte decree was obtained in O.S.No.688/2002 against the predecessors-in-interest of Shyjala Nair and her husband. Shylaja Nair and her husband conveyed this fact to the petitioner. Under the circumstances, the petitioner was bound to protect the rights of her vendees and realised that the suit was decreed exparte for her non-appearance. She filed I.A.Nos.5048 & 5049 of 2009 for condoning a delay of 1601 days, and to get the exparte decree against her set aside. The applications were contested and the petitioner let in evidence was PW1, and produced documents to satisfy the court about the reasons for her not appearing to contest the suit. The I.As. were dismissed. The petitioner filed C.M.A.No.19/2010 challenging the dismissal of the applications to set the exparte decree and condonation of delay. The Appellate Court refused to interfere. It is pointed out that O.S. No.688/2002 is a suit, which was decreed exparte, after practicing fraud on the defendant and the Court. A verification of the B-Schedule property as described in the plaint would indicate that the