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Chandran vs Velayudhan on 8 July, 2009

Kerala High Court
Chandran vs Velayudhan on 8 July, 2009
       

  

  

 
 
  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.

——————————————————–

FAO NO.351 OF 2007

——————————————————–

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

FAO 351/07 2

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,

FAO 351/07 3

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

FAO 351/07 4

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

FAO 351/07    5

sta

FAO 351/07    6

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