IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 10TH JANUARY 2011 / 20TH POUSHA 1932 FAO.No. 53 of 2009() ----------------------------- AGAINST THE ORDER DATED 02/12/2008 IN IA.1529/2008 IN OS.121/2002 of SUB COURT, MANJERI .................... APPELLANT/ DEFENDANT -------------------------------------- P.P.NOUSHAD, S/O.PANDARAPARAMBILVEETTIL AHEMEDKOYA, MANGAD AMSOM DESOM, SIVAPURAM, KOYILANDI, KOZHIKODE. BY ADVS. SRI.B.V.JOY SANKER SRI.BIJI MATHEW RESPONDENT(S): PLAINTIFF ------------------------------------------ PATHERI HAMZA, S/O.MUHAMMED HAJI ANGADIPURAM AMSOM DESOM, PERITHALMANNA MALAPPURAM. ADV. SRI.P.M.ZIRAJ THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 10/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON IA. NO.632/2009 IN FAO. NO.53/2009 DISMISSED 10/01/2011 SD/- M.N.KRISHNAN, JUDGE SD/- P.S.GOPINATHAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN & P.S. GOPINATHAN, JJ. ........................................... F.A.O.NO.53 OF 2009 ............................................. Dated this the 10th day of January, 2011. J U D G M E N T Krishnan, J: This is an appeal preferred against the order passed in I.A.No.1528/2008 and I.A.No.2529/2008 in O.S.No.121/2002. An ex parte decree has been passed against the petitioner therein and the applications are filed to condone the delay in filing the petition as well as to set aside the ex parte decree. There is a delay of almost 5 years and two months in filing an application to set aside the decree. The ground alleged is that the claimant was employed abroad and he had come to the native place recently. There had been personal service of notice and a decree has been obtained fraudulently by creating documents. It is even averred that the defendant had no acquaintance with the plaintiff at all. 2. It is stoutly opposed by the other side contending that all legal formalities contemplated under the Civil Procedure Code had been followed and publication has : 2 : F.A.O.NO.53 OF 2009 been taken out and there are absolutely no grounds to condone the delay or set aside the ex parte decree. 3. At the outset it may have to be borne in mind that the broad principles of natural justice require that the matter has to be heard and a chance has to be given unless there is gross negligence or grave misconduct (Sreedhara Kurup v. Michel (1968 KLT 599). Similarly in condoning the delay, the Hon'ble Supreme Court in the decision reported in Collector, Land Acquisition, Anantnag v. Katiji (AIR 1987 SC 1353) had made it clear that the courts are respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so”. With this broad principles in mind and applying the same to the facts of this case, it has to be stated that the applicant was really not served with any personal notice and it is submitted that he was abroad and he was languishing in the jail therein which may be one of the circumstances where a party cannot have any contact with the outside world and does not have the opportunity to know what is happening : 3 : F.A.O.NO.53 OF 2009 around and had no opportunity at all to read publications in a Malayalam paper. So we are convinced that the theory of gross negligence and grave misconduct does not arise in this case and therefore an opportunity has to be given. But when a person goes away from the native place, either he is expected to authorise somebody to receive letters or communications coming to him or at least supply address to the post office regarding his present address. As it has not been done, it has to be stated that there are laches on the part of the applicant as well. 4. Considering the facts and circumstances, we are inclined to grant an opportunity, but on condition that the applicant/appellant deposits a sum of `50,000/= and also pays cost of `5,000/= to the other side. If the amount is deposited and the cost is paid or deposited on or before 28.02.2011, the trial court shall restore the suit to file and permit the appellant to file a written statement and after affording equal opportunities to both sides, dispose of the matter within a period of three months from the date of first appearance of the parties before the trial court. If the : 4 : F.A.O.NO.53 OF 2009 amount ordered is not deposited and the cost is not paid, this appeal will stand automatically dismissed and no further orders will be necessary. Till that time ie., on 28.2.2011, no further proceedings can be had in the execution proceedings to sell the property. It is also made clear that the property under attachment shall continue to be so until further direction is given by the court. The amount is to be deposited in the trial court where the matter has to be entertained. M.N. KRISHNAN, JUDGE. P.S. GOPINATHAN,JUDGE. cl : 5 : F.A.O.NO.53 OF 2009 M.N. KRISHNAN, J. ........................................... M.A.C.A/A.S/C.R.P.NO.OF ............................................. 5th January, 2011. J U D G M E N T/O R D E R