IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 25TH JUNE 2008 / 4TH ASHADHA 1930 FAO.No. 322 of 2007() --------------------- AGAINST THE ORDER IN IA 2069/2006. IN OS.169/2005 of PRL.S.C.,THALASSERY .................... : APPELLANT/PETITIONER/DEFENDANT ----------------------------------------------- MANIKOTH MUHAMMED KUNHI, S/O.ANDU KOLAVAYAL, "SHAJ MAHAL, PARIMADAM TEMPLE ROAD, KODIYERI AMSOM, AZHEEKKAL DESOM, NEW MAHE PO., THALASSERY TALUK, KANNUR DISTRICT. BY ADV. SRI.T.A.RAMADASAN SRI.CIBI THOMAS SRI.V.R.NASAR RESPONDENTS: RESPONDENTS/PLAINTIFF ---------------------------------- K.P.MUSTHAFA, S/O.K.P.ABDUL KADER, SHARMINA, POKUNDU, KURMATHOOR, TALIPARAMBA, REP; BY HIS POWER OF ATTORNEY HOLDER P.P.ABDUL RAHIMAN, S/O.AHAMMED KUNHI, RABIYATH, NEW MAHE.P.O., THALASSERY TALUK. BY ADV. SRI.P.NARAYANAN FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 25/06/2008, ALONG WITH FAO NO. 323 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & T.R.RAMACHANDRAN NAIR, JJ. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ First Appeal Nos.322/2007 and 323/2007 ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 25th day of June, 2008 J U D G M E N T P.R.RAMAN, J. These appeals are filed against a common order dismissing I.A.No.2069/2006 in O.S.No.169/2005 and I.A.No.2068/2006 in O.S.No.31/2005. These applications were filed by the defendant in the respective suits for setting aside the ex parte decree passed against him on the same day, viz. on 26/07/2006. The parties are common in both the suits. Both suits are for realisation of money alleged to be due to the plaintiff. Plaintiff is carrying on his avocation in Dubai. The suits were filed through the Power of Attorney Holder. O.S.No.31/2005 was listed for trial on 13/09/2006. O.S.No.169/2005 was formerly posted to July 2006 but not listed. The plaintiff on arrival to Kerala sought to advance the suit, O.S.No.31/2005, to be tried along with O.S.No.169/2005 by filing an application in that behalf. That petition was filed on 15/07/2006 and was posted for counter on 18/07/2006 and a counter affidavit was filed by the counsel F.A.O.Nos.322/2007 and 323/2007 -: 2 :- appearing for the defendant. Overlooking the objection, both the cases were posted to 19/07/2006 for trial. On that day, the learned counsel for the defendant reported no instruction. Proof affidavit was filed. The defendant was set ex parte. The plaintiff himself gave evidence. The matter was adjourned. The judgment was reserved and posted to 22/07/2006. Since some more documents were to be produced on the side of the plaintiff, they sought to advance the case and accordingly the case was advanced to 21/07/2006 on which day some more documents were produced and the case stood reposted for judgment to 26/07/2006. Coming to know of these developments, the defendant preferred an application to set aside the ex parte order. Same was dismissed on the same day and judgment was pronounced on 26/07/2006. Aggrieved thereby the defendant has approached this Court by filing the above appeal. 2. Heard both sides. The factual situation as narrated in the foregoing paragraph would clearly show that the defendant normally would have expected the case to be taken only on the date posted for trial and included in the special list. But it is because the plaintiff happened to be in Kerala that he F.A.O.Nos.322/2007 and 323/2007 -: 3 :- sought to advance the case for giving evidence. Even though in the application filed by the defendant it is said that he was in Bangalore on the said day, the court below evaluated evidence in this behalf and said that there is hardly any piece of evidence to show that the defendant was in Bangalore on the day on which the case stood posted by advancement. But still the defendant could have been given an opportunity to adduce evidence on his side. At the same time, there is no complete justification in not cross-examining the plaintiff. It must be noticed that a written statement has already been filed in the listed suit. If so, based on the contention already raised in the written statement counsel appearing for the defendant could have proceeded to cross examine the plaintiff and then sought for an adjournment for adducing evidence on the side of the defendant. But at the same time, we find that even on the part of the plaintiff he had not completed the evidence on that day but still sought to produce some more documents later which was also allowed, and the application filed by the defendant on the previous day of the judgment was dismissed on the same day and proceeded to pronounce the judgment. This approach made by the court F.A.O.Nos.322/2007 and 323/2007 -: 4 :- below cannot be appreciated. In the factual situation, the court below ought to have allowed the application for setting aside the ex parte order on terms. 3. In the circumstances of the case, after hearing both sides, we direct that the ex parte order passed in both the suits will stand set aside on condition that the appellant shall deposit an amount of Rs.7,500/- by way of cost to be paid to the plaintiff before the court below within a period of three weeks from today, failing which the appeal will stand dismissed. 4. We also direct that in case the appellant deposits the amount as aforesaid, the court below will fix a convenient date for cross-examination of the plaintiff and for adducing further evidence by the parties. The appeals are allowed as above. P.R.RAMAN, Judge T.R.RAMACHANDRAN NAIR, Judge ms