IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 12TH MARCH 2010 / 21ST PHALGUNA 1931 FAO.No. 339 of 2009() --------------------- (AGAINST THE ORDER IN I.A. NO.2895/2009 IN O.S. NO.369/2005 ON THE FILE OF THE COURT OF THE II ADDITIONAL SUBORDINATE JUDGE, KOZHIKDOE) APPELLANT/PETITIONER-DEFENDANT -------------------------------------------------- CHERUKUDIMATTUVAYIL HARSHAN, S/O.GOPALAN, ELATHUR VILLAGE, ELATHUR DESOM, KOZHIKODE TALUK. BY ADV. SRI.JIJO PAUL RESPONDENT(S)/RESPONDENT- PLAINTIFF ------------------------ THEKKATTU ABDULLAKUTTY HAJI, S/O.AMADKUTTY, CHEMENCHERRY VILLAGE, THIRUVANNUR DESOM, KOYILANDY TALUK. ADV. SRI.V.V.SURENDRAN FOR R1 ADV. SRI.P.A.HARISH THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 12/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ F.A.O.No. 339 OF 2009 ------------------------ Dated this the 12th day of March, 2010 JUDGMENT Pius C.Kuriakose, J. Under challenge in this appeal is an order passed by the Subordinate Judge, Kozhikode dismissing an application under Order 9 Rule 13 filed by the appellant, who was the defendant in the suit. The suit was for specific performance of contract for sale of immovable properties. We are informed that the entire balance sale consideration payable by the respondent/plaintiff herein amounting to Rs.19,00,000/- has been deposited by the respondent. Even though the application to set aside the ex parte decree was filed by the appellant within 30 days of the decree, the learned Sub Judge did not become inclined to allow the same. The learned Sub Judge has entered a finding that the appellant was grossly negligent in pursuing the defence contention. A reading of the order shows that the appellant, in the first instance, raised a contention that the agreement for sale, on the basis of which the suit was instituted, was a forged one. In the light of that contention, document had to be FAO.No.339/2009 2 forwarded by the court to forensic science laboratory for scrutiny. Naturally it took more than one year for the laboratory for forwarding its report. It appears on reading of the impugned order that the appellant was not very enthusiastic in participating in the trial. On going through the impugned order, we also feel that there was laches on the part of the appellant in pursuing the defence. As such, we do not find any infirmity about the findings entered by the learned Sub Judge. At the same time, we notice that the issue arising in the suit is yet to be adjudicated on the basis of the evidence. The respondent was examined on commission in chief. The cross examination of the respondent could not be conducted since the appellant's counsel reported no instructions. Still, we feel that the appellant can be given an opportunity to participate in the trial by imposing stringent terms on him. 2. The result of the above discussion is, therefore, as follows; i). The impugned order will stand set aside and I.A. No.2895/2009 will stand allowed subject to the following conditions; FAO.No.339/2009 3 a). The appellant will pay a sum of Rs.10,000/- as costs to the respondent, who is said to be an octogenarian with failing health, either directly or through his counsel in this court within two weeks from today and produce receipt before the court below on or before 8/4/2010. b). The appellant shall pay Rs.5000/- to the High Court Legal Services Committee within the same time limit and produce receipt before the court below. c). The appellant shall meet all further expenses to be incurred by the respondent for his examination on commission at a venue and time which is convenient to the respondent. ii). This judgment will become operative only when the FAO.No.339/2009 4 court below notices receipts against the payment of the two amounts mentioned above. Once the judgment becomes operative, the learned Sub Judge will ensure, by issuing appropriate directions, that the examination of the respondent as PW1 in the suit is completed at the earliest and thereafter further trial of the case is also be taken up on the day to day basis. It will also be ensured that the suit is finally disposed of early and at any rate on or before 15/6/2010. iii) It is needless to mention that if any of the conditions mentioned above are not complied with and if the appellant does not cooperate as ordered herein above, the appellant will forfeit the benefit of the reliefs granted as above. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM , JUDGE dpk