IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO No. 272 of 2006()
1. VALAYANKANDAN MOOSA, S/O.MOIDEEN HAJI,
... Petitioner
Vs
1. MULLAN MADAYAN VEERAN HAJI,
... Respondent
For Petitioner :SRI.A.K.MADHAVAN UNNI
For Respondent :SRI.SAJU.S.A
The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice K.T.SANKARAN
Dated :21/02/2007
O R D E R
KURIAN JOSEPH & K.T.SANKARAN,JJ.
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F.A.O.No.272 of 2006
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Dated this the 21st day of February, 2007
JUDGMENT
Sankaran, J.
The defendant in O.S.No.106/2000 on the file of the Sub
Court, Manjeri, whose application under Order IX Rule 13 of the
Code of Civil Procedure was dismissed by the court below, is the
appellant herein. The suit was filed by the respondent herein for
realisation of money on the basis of an agreement. The execution
of the agreement was disputed by the appellant. The document
was sent to the expert for comparison of the signature of the
appellant with his admitted signature. The expert found that the
disputed signature tallies with the admitted signature of the
appellant. Thereafter the case was posted for trial. The appellant
remained ex parte and the court below passed an ex parte decree on
28-9-2004. I.A.No.1793/2004 was filed by the appellant for
setting aside the ex parte decree and that application was allowed
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on 3-1-2006. The case was taken up for trial. The chief
examination of the plaintiff was completed and his cross-
examination was commenced. During the cross-examination of
P.W.1 the parties suggested a settlement that if the plaintiff takes
oath in a particular mosque at Calicut that he had paid the amount
to the defendant, the suit could be decreed. Though the Oaths Act
is not in force and though a decree could not be passed only on the
basis of oath, since the parties entered into a compromise in that
way the court below was inclined to allow that request and directed
the parties to take recourse to oath. The terms of the oath were
settled and they were agreed upon by the defendant. However, on
the date fixed for taking oath the defendant did not turn up before
the Mosque and the settlement could not be worked out.
Thereafter when the case was taken up for further cross-
examination of P.W.1, the defendant did not appear. The court
below had no other option but to pass a decree in favour of the
plaintiff. I.A.No.345/2006 was filed by the appellant under
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Order IX Rule 13 of the Code of Civil Procedure to set aside the ex
parte decree. He put forward a case that from 23-1-2006 to 26-2-
2006 he was laid up and he produced a certificate issued by a
doctor. However, the doctor who issued the certificate was not
examined. The court below took note of the fact that the evidence
of P.W1 would indicate that the doctor advised him to meet after
15 days and on the third visit the certificate was issued. But the
certificate is seen issued on 23-1-2006. This does not tally with
the evidence adduced by P.W1. All the facts and circumstances of
the case were considered by the court below and it was found that
there was no bona fides with regard to the reasons stated in the
petition in respect of the non-appearance of the defendant on 28-1-
2004 and hence the court below was not inclined to allow the
application.
2. Learned counsel for the appellant submits that a last
chance may be afforded to the appellant to put forward his case
and that he has serious contentions to urge in the suit. Learned
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counsel for the respondent, however, contended that the attempt of
the appellant is only to protract the proceedings and to delay the
disposal of the suit. We are not impressed with the contentions put
forward by the appellant and we do not also feel that the court
below was not fully justified in dismissing the application.
However, taking note of the facts and circumstances of the case,
we are of the view that an opportunity can be afforded to the
appellant to appear before the court to cross-examine P.W.1 and to
adduce further evidence, on condition that the appellant shall
deposit 50% of the plaint claim within a period of one month from
today and shall also pay a sum of Rs.5,000/- as costs to the
respondent within the aforesaid period of one month and also pay
Rs.5,000/- as costs to the District Legal Service Authority, Manjeri
within one month. If the appellant fails to comply with any of
these conditions, the appeal shall stand dismissed and the order
passed by the court below shall stand confirmed. If the appellant
complies with all the conditions mentioned above, the order in
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I.A.No.345/2006 shall stand set aside and the appellant shall be
entitled to appear before the court and to proceed with the case. In
such a situation, the court below shall dispose of the suit within a
period of three months thereafter. It is made clear that no further
adjournment at the request of the defendant shall be granted by the
court below.
The appeal is allowed as above.
(KURIAN JOSEPH, JUDGE)
(K.T.SANKARAN, JUDGE)
ahg.