IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 FAO.No. 338 of 2007() ------------------------- ---- AGAINST THE ORDER DATED 15/11/2006 IN IA.161/04,162/04 IN OS.76/2000 of SUB COURT, CHERTHALA .................... APPELLANT/PETITIONER/5TH DEFENDANT: ------------------------------------------------------------- M/S. AUTOKAST LTD., S.N.PURAM, CHERTHALA, REPRESENTED BY ITS MANAGING DIRECTOR. BY ADV. SRI.K.ANAND (A.201) SRI.B.S.KRISHNAN SMT.LATHA KRISHNAN RESPONDENT(S): PLAINTIFFS AND DEFENDANTS 1 TO 4: --------------------------------------------------------------------------------- 1. K. HARIDASAN UNNI, S/O. D.KRISHNAN UNNI, PROPRIETOR, M/S. SREE RAM INDUSTRIES, MARUTHORVATTOM MURI,THANNEERMUKKOM NORTH VILLAGE. 2. M/S. ORIENT ABRASSIVES LTD., 1212 CHIRAMJEEVI TOWERS, 43, NEHAR PALACE, NEW DELHI-110019. 3. M/S. ORIENT ABRASSIVES LTD. 35/1-KASTURBA ROAD CROSS, BANGALORE-560001. 4. M/S. ORIENT ABRASSIVES LTD., 106-OLD MADRAS ROUND, ULSOOR-BANGALORE-560008. 5. MR. LEBBA, (DELETED) PROPRIETOR, M/S. ASHA INDUSTRIES, MAYITHARA INDUSTRIAL ESTATE, MAYITHARA MARKET P.O.,CHERTHALA (Name of 5th respondent is deleted from the array of parties at the risk of the appellant vide order dated 21.7.2008 in I.A.2835/2008) R1 BY ADV. SRI.N.ASHOK KUMAR SRI.E.JAYADEV SMT.A.SINDHULAKSHMY SMT.R.REMA SRI.R.HARIKRISHNAN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 17/09/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ F.A.O.No.338 of 2007 ---------------------------------------------- Dated, this the 17th day of September, 2009 J U D G M E N T K.M.Joseph, J. An exparte decree was passed against the appellant. The appellant filed application to set aside the exparte decree. The learned Sub Judge has dismissed the application filed by the appellant. 2. In the affidavits filed along with the application the case of the appellant inter alia is as follows. The deponent is the Managing Director of M/s.Autocast Ltd., a subsidiary of the Steel Industrials Ltd. Kerala, a Government of Kerala undertaking. The suit was filed by the Ist respondent for realisation of compensation from the petitioner and other defendants who are respondents 2 to 5. The suit was decreed exparte on 28.5.03. The said fact was brought to the notice of the deponent only when he was served with the notice of execution proceedings on 20.1.2004. The first respondent has originally presented the plaint with petition to leave to sue as an indegent person as O.P.(Ind.) 37/96. At FAO No.338/2007 -2- that time the entire file relating to the first respondent with necessary details was handed over to the counsel of the petitioner so as to enable him to defend the petitioner in an effective manner. Subsequently when the summons was served on the petitioner, to appear before court on 14.11.2000 the same was also informed to the counsel with instructions to appear. The petitioner was under the bonafide belief that the case would be properly defended. Since sufficient details and instructions were already given to the lawyer at the time of proceedings in O.P.(Ind.) 37/96, there was no further enquiry from the office of the petitioner. There was also no further communication from the office of the lawyer. On receipt of the notice on execution proceedings, the deponent contacted the office of the lawyer and on enquiry he came to know that the petitioner and other respondents were set exparte on 24.2.2003 and subsequently the suit was decreed on 28.5.2003. Due to an inadvertent mistake on the part of the office of the counsel he omitted to represent for the petitioner in time and do the needful on behalf of the petitioner, in consequence of which the petitioner happened to be declared exparte. There is no wilful laches or omission on FAO No.338/2007 -3- the part of the petitioner or its officers in decreeing the suit exparte. There is no laches or omission on the part of of the counsel or his clerk. It happened due to an inadvertent mistake on the part of the office of the counsel. The petitioner has filed a petition to set aside exparte decree on getting information regarding the exparte decree on 20.1.2004. Actually there is no delay in filing the said petition since the petitioner got knowledge regarding the decree on 20.1.2004 only. But in case it is found that there is delay in filing the said petition, the delay of 217 days calculated from 28.5.2003 may be condoned. 3. The plaintiff objected to the same. Learned Sub Judge found that there was failure on the part of the appellant to enquire about the progress of the case. He took note of the stand of the witness of the appellant that once vakkalath is handed over to the lawyer making any such enquiry is not the duty of the company. It is found that if the appellant made enquiry they would have known about the case. It is found that the evidence shows that the appellant did not enquire. It is also stated that there was failure to file written statement and failure of the counsel to appear before the court resulting FAO No.338/2007 -4- the appellant being set exparte. It is stated that there is no explanation for each day's delay. The application to condone the delay being meritless it is dismissed. Consequently, the application to set aside the exparte decree is also dismissed. 4. We heard Sri. K.Anand, learned counsel for the appellant and Sri.N.Asok Kumar learned counsel for the Ist respondent. Learned counsel for the appellant would point out that only because of the fact that the counsel did not inform the progress that the matter could not be prosecuted. He further submits that it is not the law that each day's delay should be explained. Per contra, learned counsel for the Ist respondent would contend that the suit was filed as indigent O.P. in the year 1996 which was allowed and numbered as suit in the year 2000. Subsequently, after 2 ½ years the suit was decreed on 28.5.2003. He would further point out that there is failure on the part of the appellant even to file written statement and the appellant had been set exparte and finally the exparte decree was passed. 5. No doubt, there is some laches on the part of the appellant also. None-the-less we cannot overlook the case of the appellant that the appellant was looking forward to FAO No.338/2007 -5- receiving intimation from the counsel in regard to the progress in the suit. We take a lenient view and hold that the applications filed by the appellant are to be allowed so as to advance the cause of substantial justice, but on condition in view of the facts as already noted. Accordingly, the appeal is allowed, the impugned order is set aside and the applications filed by the appellant stands allowed, on condition that the appellant will pay over to the counsel for the Ist respondent as costs a sum of Rs.10,000/- (Rupees ten thousand only) and produce the memo within a period of one month from today, failing which the appeal will stand dismissed. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS Appellant has paid Rs.10,000/=(Rupees Ten thousand only) towards cost to the counsel for the first respondent in compliance of the direction contained in the judgment dated 17/09/2009 in FAO 338/2007 vide memo cf 6809/09 dated 16/10/2009. Sd/= Registrar (Judicial)