IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 FAO.No. 146 of 2009() --------------------- OS.500/2006 of II ADDL.SUB COURT,ERNAKULAM .................... APPELLANT/PETITIONER/DEFENDANT: --------------------------------------------------- S.PRAKASH CHAND, S/O.SUGANCHAND, 119/62, R.K.MUTT ROAD, MANDAVELI, CHENNAI-600 028. BY ADV. SRI.C.DILIP SRI.K.C.KIRAN RESPONDENT(S): PLAINTIFF: ------------------------- M/S.VERTEX COMEX & FINPRO (P) LTD., THOTTATHIL TOWERS, 2ND FLOOR, MARKET ROAD, ERNAKULAM, KOCHI-682 018, REPRESENTED BY ITS SENIOR EXECUTIVE MR.K.J.THOMAS. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 03/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 146 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of July, 2009. JUDGMENT Bhavadasan, J, The petitioner, who had his I.A. No.8751 of 2008 and IA. 8752 of 2008 in O.S. 500 of 2006 dismissed by the IInd Additional Sub Judge, Ernakulam, is the appellant. 2. It appears that an ex-parte decree was passed against the appellant on 17.1.2007. Petitioner then filed I.A. 8751 of 2008 to set aside the ex-parte decree and also I.A. 8752 of 2008 to condone the delay in filing the application to set aside the ex-parte decree. 3. The suit was one for recovery of money. Petitioner claims that he had not received summons in the suit and he had no idea about the pendency of the suit. When he received notice in execution, he came to know that the suit had been decreed against him. He had received notice in the execution on 13.3.2008. He claims that soon thereafter he had F.A.O. 146/2009. 2 engaged a counsel to take necessary steps in the matter. He would also say that even though he had received the certified copy on 8.8.2008 and since his mother-in-law died in September, 2008, he was unable to take immediate steps to have the appeal filed. Petitioner would assert that there was no wilful laches or negligence on his part in not preferring the petition to set aside the ex-parte decree within the stipulated time. He claims that he has got serious contentions to be raised in the suit and if the ex-parte decree is maintained, that would cause irreparable loss and injury to him. 4. The application was resisted by the respondent before the court below. It was pointed out that the claim of the appellant that he had no notice of the suit is incorrect. It is pointed out that he had filed a criminal case as C.C.2894 of 2006 before the XIth Metropolitan Magistrate Court, Saidapet, Chennai on 14.12.2006 raising baseless allegations against the respondent herein. The stand of the respondent was that this is a deliberate F.A.O. 146/2009. 3 attempt on the part of the petitioner to drag on the proceedings. 5. The court below has taken pains to verify the records. The court below found that on 30.8.2006 summons was issued to the petitioner to appear on 12.10.2006. Since the summons had not been directly served, on 12.10.2006 summons was directed to be issued by registered post. The court below also noticed that the summons issued in the first instance had been affixed in the last known residence of the petitioner. Going by the records, the court below found that the summons sent by registered post had been served on the petitioner. Since he did not appear on the posting date, he was set ex-parte and subsequently decree was also passed. 6. The court below found that the claim of the petitioner that he had notice of the ex-parte decree only on 13.3.2008 when he received summons in the execution petition cannot be accepted. The court below has held that the address shown in the plaint and in the execution proceedings are identical. F.A.O. 146/2009. 4 Petitioner had not appeared in the court either on 20.11.2006 and on 20.12.2006. 7. On going through the order of the court below, it can be seen that the application to have the certified copies was filed on 25.11.2006. It was claimed that the copies were received on 11.8.2008. Even thereafter he took considerable time to file the appeal. Taking into consideration the above facts and circumstances, the court below was of the definite opinion that the claim of the petitioner before it that he had no notice of the suit cannot be accepted. 8. It is significant to notice that the petitioner had not produced any evidence to show that what he had claimed is true. Atleast one would have expected him to mount to the box and speak about his case. Except the filing of the petition, he did nothing in the matter. The court below has considered the materials on record and has come to the conclusion that the petitioner had notice of the suit and his non-appearance was F.A.O. 146/2009. 5 deliberate. One must notice that the notice was sent by affixture as well as by registered post. The claim of the petitioner that he had not signed any acknowledgment card cannot be accepted. If he had such a case, it is for him to establish that fact. He could have examined the postman concerned. Without doing anything in that regard, the claim of the petitioner that he had not received the summons cannot be accepted. No grounds are made out to interfere with the order of the court below. The appeal is without merit and it is dismissed in limine. P.R. Raman, Judge P. Bhavadasan, Judge sb.