IN THE HIGH COURT OF KERALA AT ERNAKULAM
RFA.No. 344 of 2007()
1. M/S. MAHAVIR PLANTATIONS LTD.,
... Petitioner
Vs
1. COLONEL E.PADMANABHAN,
... Respondent
For Petitioner :SRI.U.K.RAMAKRISHNAN (SR.)
For Respondent :SRI.N.P.SAMUEL
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :16/12/2009
O R D E R
K. M. JOSEPH &
M.L. JOSEPH FRANCIS, JJ.
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R.F.A.No. 344 of 2007
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Dated this the 16th day of December, 2009
JUDGMENT
Joseph, J.
This appeal is directed against the decreeing of the suit ex
parte against the appellant.
2. Heard the learned counsel for the appellant and the
learned counsel for the respondent.
3. The learned counsel for the appellant would point out
that it is only on account of circumstances beyond the control that
the appellant could not appear on the day when the case was
listed for trial and the appeal came to be decreed ex parte. He
submits that he has valid contentions in the suit and an
opportunity may be given to substantiate his case.
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4. The learned counsel for the respondent, on the other hand,
submits that the suit was filed for arrears of salary. He further
submits that the appellant had bee set ex party earlier and he filed an
application, which was allowed and thereafter written statement was
filed and again he has not appeared, resulting in the present decree
being passed.
5. After hearing the parties, we feel that the appellant should be
given an opportunity to substantiate his contentions. But in the
circumstances of the case, we cannot think that it can be an
unconditional decision. The suit is one for arrears of salary due to the
respondent. The decree amount is Rs.14,13,903.85 with interest at the
rate of 12% p.a. from the date of the suit till the date of realisation.
The plaintiff was also allowed to realise cost of Rs.1,42,399/- In such
circumstances we feel that we would be justified in directing the
appellant to deposit a sum of Rs. 5 lakhs, of which the respondent is
permitted to withdraw a sum of Rs. 2.5 lakhs.
R.F.A.No. 344 of 2007
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6. Accordingly the appeal is allowed and we set aside the
judgment and decree of the court below and remand the matter back to
the court below for fresh consideration, on condition that the appellant
will deposit an amount of Rs. 5 lakhs before the court below within a
period of one month from today. It is made clear that the respondent
will be at liberty to withdraw an amount of Rs.2.5 lakhs from the said
amount. There will be a further condition that the appellant will pay a
sum of Rs.5,000/- as cost to the counsel for the respondent appearing
in this court and produce memo to that effect within a period of one
month. We make it clear that depositing of the amount of Rs. 5 lakhs
or permitting the respondent to withdraw Rs.2.5 lakhs will be without
prejudice to the contentions of the appellant in the suit. If the appellant
does not comply with the conditions, the appeal will stand dismissed.
If the conditions are complied with, the suit will be taken up and
disposed of within a period of three moths from the date on which
compliance of the conditions is reported to the court. If the appellant
R.F.A.No. 344 of 2007
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complied with the conditions as aforesaid, the court fee paid in the
appeal will be refunded to the appellant.
(K. M. JOSEPH)
Judge
(M.L. JOSEPH FRANCIS)
Judge
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In compliance with the direction in the judgment dated
16/12/2009 in R.F.A. 344/2007 the Appellant’s counsel has deposited
an amount of Rs.5 lakhs before the Court below and has paid a sum of
Rs.5,000/- by way of cost to the counsel for the respondent appearing
in the High Court within the time stipulated. Vide memo dated
19/01/2010, c.f. 33/10.
Sd/- Registrar (Judicial)