IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 FAO.No. 177 of 2009() --------------------- I.A. 917/08 IN OS.57/2004 of SUB COURT, PAYYANNUR .................... APPELLANT/PETITIONER/DEFENDANT ------------------------------------------------------- THUNDIYIL VARKEY MATHEW,AGED 59 YEARS, S/O.T.VARKEY,THUNDIYIL HOUSE, PERUMKUDAL, VAYAKKARA VILLLAGE,P.O.CHERUPUZHA. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENT(S): RESPONDENT/PLAINTIFF ------------------------------------------------------------- STATE BANK OF INDIA,PAYYANNUR BRANCH, REPRESENTED BY ITS CHIEF MANAGER. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 03/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 177 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of August, 2009. JUDGMENT Bhavadasan, J, The Bank had instituted a suit for money against the appellant. The appellant resisted the suit and filed a written statement. The suit was listed to 7.6.2008. On that day, the defendant could not appear due to illness. He had been in bed for six months. Whatever that be, the suit was decreed ex- parte on 7.6.2008. As soon as the appellant came to know about the ex-parte decree, he filed a petition to set aside the ex- parte decree. 2. The respondent before the court below had pointed out that there was no bonafides in the application and this is the second occasion on which the suit had been decreed ex-parte. It is also pointed out that no documents are produced to show that the petitioner before the court below was actually indisposed. F.A.O.177/2009. 2 3. Before the court below it appears that no evidence was adduced by either side. The court below on a consideration of the materials before it came to the conclusion that no sufficient cause has been shown to set aside the ex-parte decree and dismissed the petitions. The said order is assailed in this appeal. 4. Learned counsel appearing for the appellant pointed out that the court below was not justified in rejecting the petitions. The main ground urged is that on the day on which the suit was posted for trial, the petitioner before the court below was laid up and his absence was due to the reasons beyond his control. The court below ought to have accepted that contention and set aside the ex-parte decree. 5. The ground urged by the petitioner before the court below to set aside the ex-parte decree was that the petitioner was suffering from back pain and was advised to take rest for two weeks from 4.6.2008. Though the petitioner before the court below had stated that he was laid up due to illness, he did not give oral F.A.O.177/2009. 3 evidence nor did he produced any documents. The court below has also noted that on an earlier occasion an ex-parte decree had passed against the defendant. It is also to be noticed that the petitioner also did not go into the box. It was in those circumstances that the petition happened to be dismissed. 6. The order of the court below cannot be faulted. Faced with this situation, learned counsel appearing for the appellant then pointed out that the appellant may be given an opportunity to adduce evidence with regard to his petition to set aside the ex-parte decree. 7. True, on an earlier occasion the suit had been decreed ex-parte and it had been set aside. But one must notice that the petitioner before the court below had filed his written statement. That means that he intends to contest the suit on merits. 8. Considering the above facts, it is felt that an opportunity ought to be given to the petitioner to substantiate his contentions regarding the petition to set aside the ex-parte decree. F.A.O.177/2009. 4 In the result, this appeal is allowed, the order dated 23.3.2009 in I.A. No.917 of 2008 in O.S. No.57 of 2004 is set aside and I.A. No.917 of 2008 is remanded to the trial court for fresh consideration after giving an opportunity to the parties to adduce evidence in accordance with law and in the light of what has been stated above. P.R. Raman, Judge P. Bhavadasan, Judge sb.