IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 277 of 2004()
1. SOMAN S/O. NARAYANAN, AGED 48 YEARS,
... Petitioner
Vs
1. THOMAS S/O. MATHAI, MUDAKKALIL,
... Respondent
For Petitioner :SRI.P.M.JOSHI
For Respondent :SRI.PHILIP T.VARGHESE
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :19/08/2009
O R D E R
P.R.RAMAN & P.BHAVADASAN, JJ.
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F.A.O. No.277 of 2004 & C.R.P.No.1335 of 2004
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Dated this the 19th August, 2009
J U D G M E N T
Raman, J.
Defendant in O.S.No.57 of 2003, on the file of Sub
Court, Pala, is the appellant and the revision petitioner. The suit
is one for realisation of an amount of Rs.2,36,175/= with 13%
interest thereon. The suit was instituted as early as on 2003.
Even though several adjournments were taken, the defendant did
not file any written statement. Ultimately, when the suit was
posted for trial, he was absent. Accordingly, he was declared ex
parte and a decree was passed by the court below. Later he
filed an application to set aside the ex parte decree along with a
petition to condone the delay of 70 days in filing the same. The
court below considered both these applications together and by a
common order, dismissed the application for condonation of
delay, as the court was not satisfied that the delay occurred
due to any reasons beyond the control of the appellant and that
FAO.No.277 of 2004 and CRP.No.1335 of 2004
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there is anything to show that the delay occurred due to reasons
as stated by him. Consequent upon the dismissal of the delay
petition, petition to set aside ex parte decree was also
dismissed. He has preferred the appeal as against the order
dismissing the application to set aside ex parte decree and Civil
Revision Petition has been filed against the order refusing to
condone the delay. As both these cases are connected, these
were heard together and disposed of.
2. According to the appellant, he was diligent in
prosecuting the matter, though he happened to be absent on the
day on which the case stood posted, and his absence was not
due to willful negligence or laches on his part, but occasioned by
the reason of his ill-health. According to him, on the day on
which the case stood posted, while proceeding to the court, he
suffered back pain and he underwent treatment in Primary Health
Centre. He was advised rest and accordingly after completing
the rest, he approached the court for setting aside the ex parte
decree. The delay occurred due to the above fact. The court
FAO.No.277 of 2004 and CRP.No.1335 of 2004
3
below found that the certificate produced by him did not show
that he was admitted in the Primary Health Centre. Though the
reason for the delay is stated to be that he was indisposed of
with back pain, the Doctor was not examined in the case.
Coupled with this, he was not even prepared to file a written
statement, despite taking adjournments for the same. Therefore,
the court below dismissed the application for condonation of
delay. The learned counsel for the appellant however pleaded
that he may be given one more opportunity to contest the case
on merits.
3. In the facts and circumstances of the case and
in the light of the fact that the appellant did not mount the box
nor the Doctor was examined in the case, it cannot be said that
the court below was wrong in not accepting the medical
certificate.
4. The learned counsel appearing for the
respondent, would submit that the suit was filed as early as in
2003 claiming principle amount along with interest. Though the
FAO.No.277 of 2004 and CRP.No.1335 of 2004
4
above matters were pending before this Court since 2004, no
steps were taken to dispose of the matter on an earlier date.
5. We find that like the appellant, equally the
respondent could have also taken steps for getting early disposal
of the matter. At any rate, these are not grounds to dismiss the
appeal. The question is whether one more opportunity should be
given to the appellant. But the totality of the facts, as narrated
above, would clearly show that an opportunity to contest the
matter on merits could be given, after setting aside ex parte
decree, but only on heavy terms.
In the circumstances, we direct that in case the
appellant deposits an amount of Rupees One Lakh within a period
of one month from today, the delay will stand condoned and the
ex parte decree will stand set aside, and the suit will be
restored to file. Along with the deposit, the appellant shall also
file a written statement. The court below will dispose of the case
expeditiously after pre-trial steps are over. In case, the amount
is not deposited as aforesaid, these appeal and revision will
FAO.No.277 of 2004 and CRP.No.1335 of 2004
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stand dismissed and the decree passed by the court below will
stand confirmed.
Both the appeal and revision are disposed of as
above.
P.R.RAMAN, JUDGE
P.BHAVADASAN , JUDGE.
nj.