IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 FAO.No. 58 of 2008() -------------------- AGAINST THE ORDER IN IA 326/07 & 327/07 IN OS.86/2001 of ADDL.SUB COURT, PALAKKAD .................... APPELLANT(S): PETITIONER IN BOTH I.A. ---------------------------------------------------------- JAGADEESH BABU, AGED 46 YEARS S/O.LATE SUKUMARAN, PUSHPANJALI, KALPATHY P.O., PALAKKAD NO.1 VILLAGE, PALAKKAD TALUK AND DISTRTICT. BY ADV. SRI.B.GOPAKUMAR SMT.CHINCY GOPAKUMAR RESPONDENT(S): RESPONDENTS IN BOTH I.AS ------------------------------------------------------------------ 1. M.C.KURIACHAN, S/O.CHERIYAN, MANAPPULLIKAVU, CHOTTOOR ROAD, PALAKKAD TALUK AND DISTRICT 2. MANAGING DIRECTOR, KOUMUDI PUBLICATIONS PVT.LTD, THIRUVANANTHAPURAM 3. VIJAYA BABU, EDITOR, MYS COMMUNICATIONS, PETTA, THIRUVANANTHAPURAM. 4. ABRAHAM EAPPEN, PRINTER AND PUBLISHER FIRE FORTNIGHTLY, KALAKAUMUDI PUBLICATIONS, THIRUVANANTHAPURAM 5. REEBA ANTONY, D/O.ANTONY CHERIAN, NALPATHAMKULAM, 23, NORTH GIRI NAGAR, KOCHI-682020 6. ANTONY CHERIYAN, S/O.CHERIAN, NALPATHAMKULAM, 23, DO.DO. ADV. SRI.T.M.RAMAN KARTHA FOR R.5,6 SMT.P.K.RADHIKA FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 29/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 58 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of July, 2009. JUDGMENT Raman, J, This is an appeal against the order dismissing the application to set aside the ex-parte decree after refusing to condone the delay in filing the same. 2. Appellant is the fourth defendant in a suit for damages instituted by the plaintiff. The suit was decreed ex- parte on 15.7.2005 as none of the defendants appeared on that day. The appellant as also defendants 1 to 3 had engaged the same Advocate. According to the appellant, the Advocate engaged by them promised that she will inform the date of the hearing of the case and when there was no information from their Advocate thereafter, the appellant contacted the Advocate over phone, the Advocate except to say that she will inform the date of hearing, he did not get any information regarding the same. Appellant was under the impression that the FAO.58/2008. 2 proceedings might have been dropped. Only when he received notice under the execution petition, he came to know about the decree passed and engaged another lawyer and filed the petition to set aside the ex-parte decree. In that process, there is a delay of 540 days in filing the application to set aside the ex-parte decree. 3. In the counter affidavit filed by the plaintiff the averments and the allegations contained in the affidavit are denied, that the appellant's contention that he came to know about the decree only when he contacted the lawyer on getting notice is also false. 4. The suit is one for realisation of an amount of Rs.2,00,000/- by way of damages. The first defendant is the Managing Director of Koumudi Publications (P) Ltd., second defendant is the Editor, third defendant is the Printer and Publisher. The appellant is the fourth defendant, who was employed as a reporter of fortnightly Fire. Defendants 5 and 6 are one Reeba Antony and her father Antony Cheriyan. The plaint claim is based FAO.58/2008. 3 on the publication of a defamatory news items published from Thiruvananthapuram. Though eventually an ex-parte decree was passed against all the defendants, admittedly the matter was compromised with defendants 5 and 6. True that the petitioner was not able to establish his case that it is because of the default on the part of the Advocate to pass on the information that he failed to appear in the court. He did not give any evidence by offering himself to be examined in the case neither the Advocate concerned nor anybody else in that office was examined. Thus, except to file an affidavit he has not offered himself to be cross-examined by the other side. Therefore even the plea raised by him, the reasons advanced by him, the explanation offered by him for non- appearance is that there is absolutely no evidence. In those circumstances, the court below refused to condone the delay and consequently both the applications were dismissed. 5. In so far as the appellant has not been able to establish the case put forth by him, we cannot find fault with the FAO.58/2008. 4 order passed by the court below. It is the burden of the appellant to prove that his non-appearance was not due to laches or wilful fault and that he was prevented by sufficient cause from not appearing on the appointed day. As we find, in the absence of any evidence, oral or documentary, the court below was fully justified in dismissing the applications. In this connection, it is to be noticed that the suit is decreed as against all the defendants and none of them including those who have engaged the same lawyer along with the appellant had sought to file any application to set aside the ex-parte decree. For the above reasons, we find no merit in this appeal. Accordingly the same is dismissed. P.R. Raman, Judge P. Bhavadasan, Judge sb.