IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 351 of 2007()
1. CHANDRAN, AGED 60 YEARS,
... Petitioner
Vs
1. VELAYUDHAN, S/O.THANKOORAN SANKARAN,
... Respondent
For Petitioner :SRI.V.M.KRISHNAKUMAR
For Respondent :SRI.JIJO PAUL
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :08/07/2009
O R D E R
P.R.RAMAN & P.BHAVADASAN, JJ.
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FAO NO.351 OF 2007
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Dated 8th July 2009
Judgment
BHAVADASAN, J.
The defendant in OS No.140/02 before the Additional
Subordinate Judge’s Court, Irinjalakuda, who had his
applications for condoning the delay and to set aside the ex
parte decree were dismissed, is the appellant. The suit was one
for money. The allegation was that the defendant had borrowed
money from the plaintiff for business purpose. A sum of
Rs.1,40,000/- was due from him. The appellant had issued a
cheque for the said amount from his account at Meloor Service
Co-operative Bank. The cheque was dishonoured and hence the
suit. The appellant on getting summons said that he had
engaged Advocate Jayaraj for conducting the case. A written
statement was also filed on his behalf. According to the
appellant, he was told by his counsel that he will be informed
when the case is listed for trial, in due course. The appellant
claimed that thereafter, he had no information from his counsel
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and therefore, he could not come to the court thereafter.
However, he was arrested in a criminal case on 04.04.2007 and
thereafter, when he enquired, he came to know that the suit had
already been disposed of ex parte. He filed two petitions namely,
IA Nos.1268/07 and 1269/07 were filed, one to set aside the ex
parte decree and the other to condone the delay in filing the
petition to set aside the ex parte decree. The appellant narrated
the entire facts and pointed out that there was no wilful laches or
negligence on his part in not appearing before the court below.
According to him, he bona fide believed that his Advocate would
inform him regarding the posting of the case and remained
under that impression. It is only after his arrest on 04.04.2007
that he came to know about the passing of the ex parte decree.
He pointed out that unless the suit is disposed of on merits,
irreparable injury would be caused to him. The respondent in the
application resisted the petitions. It is pointed out by him that
there is no merit in the contentions now taken by the appellant.
2. It seems that neither side had adduced any evidence.
The court below on perusal of the records found that in fact,
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Advocate Jose Perepadan was appearing on behalf of the
appellant and not Advocate Jayaraj. On that finding, the court
below came to the conclusion that there was sufficient reason
made out to condone the delay and accordingly dismissed both
the petitions.
3. It may be true that the appellant was represented by
Advocate Jose Perepadan. According to the appellant, Advocate
Jayaraj and Advocate Jose Perepadan were in the same office
and they were doing common practice. It is also pointed out that
the appellant was not given an opportunity to adduce evidence
in support of his case for condonation of delay.
4. The suit was one for recovery of money based on a
dishonoured cheque. It is seen that the appellant was arrested
in a criminal case in relation to the said cheque. The appellant
has pointed out that in fact, he had engaged Advocate Jayaraj
for conducting his case and the appellant was not aware that the
suit has been listed for trial. It is significant to notice that the
defendant had filed a written statement which shows that he was
inclined to contest the case. It is also claimed that no opportunity
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was given to adduce evidence to the appellant to establish his
stand. It needs to be noticed that there is no finding of the court
below that the defendant was a consistent defaulter and his
attempt was only to drag on the proceedings. In a case where
the defendant has filed a written statement, contesting the claim
made by the plaintiff, it is difficult to believe that he has
deliberately abstained from the court, inviting an ex parte
decree. One cannot omit to note that Advocate Jayaraj was
practising with Advocate Jose Perepadan and so, the claim of
the appellant could be true. Whatever that be, these are all
matters which are to be considered by the court below. The
court below ought to have given an opportunity to adduce
evidence to establish his case. The dismissal of the application
by the court below has to be interfered with. The appeal is
accordingly allowed. The matter is remanded to the trial court for
fresh consideration in accordance with law after giving an
opportunity to both sides to adduce evidence if they so choose.
P.R.RAMAN, JUDGE
P.BHAVADASAN, JUDGE
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sta
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