IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 FAO.No. 46 of 2008() -------------------- AGAINST THE ORDER DATED 31/01/2008 IN IA 1345/07 & IA 1346/2007 IN OS.35/2005 of SUB COURT, QUILANDY .................... APPELLANT/PETITIONERS/DEFENDANT NO.4: ----------------------------------------------------------------- VIDYA NIVASIL RATNAKARAN,AGED 41 YEARS, S/O. BHASKARA PANICKER, BEYPORE AMSOM, DESOM, KOZHIKODE TALUK. BY ADV. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA RESPONDENT(S): RESPONDENTS/PLAINTIFF & DEFENDANTS 1 TO 3: ---------------------------------------------------------------------------------------------- 1. BHASKARAN NAIR, AGED 53 YEARS, S/O.KRISHNAN NAIR,MINERVA HOUSE,PANNIYANKARA AMSOM DESOM, KOZHIKODE TALUK. 2. KOLOTH C.P. SURESH BABU, AGED 40 YEARS, S/O. GOPALAN NAIR, IRINGAL AMSOM, DESOM, KOYILANDY TALUK. 3. K. VISWANATHAN,S/O. APPUNNI EZHUTHACHAN, H.S. STREET, KAVUMMANDAM AMSOM, DESOM, KALPETTA, WYNAD DISTRICT. 4. P. MUHAMMADALI, S/O. ALAVIKUTTY, KANACHIKKAL, MANCHERRY, MALAPPURAM DISTRICT. 5. THARAMMALPARAMBA P.T.ABDUL MAJEED, S/O. AYISHABI, CHEVAYUR AMSOM, DESOM, KOZHIKODE TALUK. ADV. SRI.B.KRISHNAN FOR R1 & 2 SRI.R.PARTHASARATHY FOR R1 & 2 SRI.T.K.SAIDALIKUTTY FOR R4 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 09/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No.46 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of July, 2009. JUDGMENT Bhavadasan, J, Aggrieved by the order dated 31.1.2008 in I.A. Nos.1345 of 2007 and 1346 of 2007 in O.S. 35 of 2005, petitioner before the court below has come up in appeal. 2. Petitioner was the fourth defendant in O.S.35 of 2005. The suit was one for money. The allegation was that an amount of Rs.2,00,000/- was due from the second defendant. Claim was laid on the basis of a vehicle transaction. The fifth defendant in the suit had purchased the vehicle from the third defendant. Fourth defendant is the power of attorney holder of the fifth defendant. Since some of the defendants including the petitioner herein did not take necessary steps in the suit, they were declared ex-parte and an ex-parte decree was passed on 11.12.2006. Even though a review of the said judgment was sought for by the petitioner, it was not granted. F.A.O. 46/2008. 2 3. Then the petitioner filed two petitions already mentioned above, one of which for setting aside the ex-parte decree and the other to condone the delay in filing the petition to set aside the ex-parte decree. 4. Respondents resisted the petitions. The court below on a consideration of the materials before it found that no sufficient cause has been made out to condone the delay and to set aside the ex-parte decree. Accordingly dismissed the same. 5. Learned counsel appearing for the appellant, who is the fourth respondent in the suit pointed out that in fact defendants 4 and 5 had entrusted the entire matter to third defendant and he had agreed to do whatever necessary in the matter. Learned counsel pointed out that in fact the fifth defendant had bought the vehicle from the third defendant. It was much later that the appellant came to know that third defendant had not taken any steps in the matter and liability had been fastened on all of them. Counsel pointed out that fourth defendant had no personal liability F.A.O. 46/2008. 3 and the court below was therefore not justified in passing the decree against him. Learned counsel appearing for the appellant also pointed out that sufficient reasons have been given to condone the delay. 6. The matter relates to the recovery of money on the basis of a vehicle transaction. It would appear from the records that the vehicle originally belonged to second defendant and then it was handed over to third defendant and thereafter to fifth defendant. It is interesting to note that initially a decree was passed against all the defendants. Third defendant then moved the court for setting aside the ex-parte decree. That was allowed and thereafter the plaintiff filed a petition stating that he is not pressing the relief sought for against the third defendant. The result is that he was exonerated from any liability. 7. One need not doubt the version given by the appellant when he says that he and the fifth defendant had entrusted the matter to third defendant and they believed that he F.A.O. 46/2008. 4 would have taken the necessary steps. It must be remembered that the fifth defendant had bought the bus from the third defendant. It is also seen that the delay was caused due to the fact that the third defendant did not inform the appellant about the disposal of the case. Of course, it must be noticed here that in I.A. 1168 of 2006 filed by the third defendant for setting aside the ex-parte decree the appellant was also shown as the respondent. 8. It is not discernible from the order whether copy of I.A.1168 of 2006 was infact received by the appellant or before the court below the fourth defendant had stated that he had no objection in setting aside the ex-parte decree against third defendant. 9. Even assuming that such a stand was taken by the fourth defendant, one fails to understand how a personal decree could be passed against fourth defendant. It is here, one has to notice the conduct of the plaintiff and the third defendant. There was no contest at all when the third defendant moved for setting F.A.O. 46/2008. 5 aside the ex-parte decree, and then the plaintiff filed a petition stating that he is not pressing the relief as against the third defendant, thereby exonerating him from all liabilities. This cannot be viewed in isolation. It is here that the claim of the appellant assumes importance. It could not be said that the stand of the appellant that he bonafide believed that the third defendant would take such steps which are necessary to contest the suit need not be disbelieved. As already noticed, the bus has been bought by fifth defendant from third defendant and the appellant was the power of attorney holder of fifth defendant. It is difficult to believe that under such circumstances the fourth defendant would have deliberately abstained from court taking the risk of inviting the ex- parte decree against him especially when the plaint contains allegation and relief sought against him also. Viewed from that angle, the claim of the appellant appears to be probable. 10. At any rate, any injury or loss caused to the plaintiff in the suit by setting aside the ex-parte decree and having F.A.O. 46/2008. 6 the matter heard on merits can be compensated by awarding costs. Considering the various aspects, it is felt that the fourth defendant should be given an opportunity to have the suit decided on merits. In the result, this appeal is allowed and the impugned order is set aside and the trial court is directed to take back the suit on file as against the fourth defendant, who is the appellant herein on condition that the appellant pays a sum of Rs.5,000/- to the plaintiff in the suit within three weeks from today. If the amount is not paid within the stipulated period, this appeal shall stand dismissed. P.R. Raman, Judge P. Bhavadasan, Judge sb.