IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 20TH JULY 2009 / 29TH ASHADHA 1931 FAO.No. 135 of 2009() --------------------- AGAINST THE ORDER IN IA 456/2008 IN OS.277/2002 of SUB COURT, CHENGANNUR .................... APPELLANTS/PETITIONERS/DEFENDANTS ----------------------------------------------------------- 1. ACHUTHAN PILLAI, MANNATHU HOUSE, MALLAPPALLY, PATHANAMTHITTA. 2. PRADEEP A.PILLAI, S/O ACHUTHAN PILLAI, MANNATHU HOUSE, MALLAPPALLY, PATHANAMTHITTA. BY ADV. SRI.M.J.THOMAS SMT.RUBY K.JOSE RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------------------------------- ART LEASING LIMITED, REGISTERED OFFICE AT 2ND FLOOR, PUTHIYATHU BUILDINGS, ENGINEERING COLLEGE JUNCTION, M.C.ROAD, CHENGANNUR REPRESENTED BY ITS RECOVERY MANAGER. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 10/07/2009, THE COURT ON 20/07/2009 DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No.135 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of July, 2009. JUDGMENT Bhavadasan, J, The appeal is directed against the order in I.A.455 of 2008 and I.A. 456 of 2008 in O.S. 277 of 2002. 2. O.S. 277 of 2002 was a suit for money. The allegation was that the plaintiff and the defendants had entered into an agreement to get financial assistance for purchasing a motor vehicle from the first defendant. The repayment was to be made in monthly instalments. As usual, the first defendant has defaulted in payment of the amount due to the plaintiff and the suit was laid. The appellants would say that they had entrusted the case to Adv.Bijo Thomas George and Adv. S.K. Saji. They had given necessary instructions for filing written statement. The petitioners have come to know that their counsel had not done so and decree was passed under Order VIII Rule 10 of the Code of Civil Procedure. The appellants were unaware of the decree till 23.6.2003. F.A.O.135/2009. 2 2. The appellants laid two interlocutory applications, one for setting aside the ex-parte decree and the other for condoning the delay in filing the ex-parte decree. It is stated that the first petitioner before the court below was indisposed as he was seriously ill and his toe had to be amputated. They pointed out that their absence was due to reasons beyond their control and they have strong contentions to be urged in the suit. According to them, if the matter is not heard on merits, it will cause irreparable injuries to them. 3. In support of their case, the defendants had examined D.Ws. 1 to 3 and marked Exts. B1 and B2. The court below on a consideration of the materials before it found that there was no bonafides in the said petitions and accordingly dismissed the petitions. 4. The said order is assailed in this appeal. 5. Learned counsel appearing for the appellants pointed out that the court below was not justified in dismissing the petitions because the petitioners before the court below had given cogent and sufficient reasons for their absence on the day on which the suit was posted for trial. It is also pointed out that medical records have been F.A.O.135/2009. 3 produced and the Doctor, D.W.3 was also examined. Sufficient reasons had been given and the court ought to have allowed the petitions. 6. There is no merit in the above contentions at all. The claim was that the first appellant was laid up for a long time and had to undergo continuous treatment. In support of his claim, he has produced Ext.B1 certificate. That was issued by D.W.3, the Doctor. The certificate produced by the appellant shows that the first appellant was in the hospital from 28.9.2002 to 5.11.2002. Ext.B2, the case sheet, shows the nature of treatment given to him. Even going by the claim of the appellants, the first appellant was under treatment from 28.9.2002 to 5.11.2002. It may at once be noticed that no reasons whatsoever is given as to why the second appellant could not take necessary steps. Apart from the above facts, in the statement of facts it is stated that the suit was decreed ex-parte on 23.6.2003, that is long after the first appellant had been discharged from the hospital. One cannot omit to note that the delay is of 1869 days in filing the petition to set aside the ex-parte decree. It is very evident that after engaging a F.A.O.135/2009. 4 counsel, the appellants did nothing in the matter and ignored the proceedings. Even assuming that the first appellant was indisposed, nothing prevented the second appellant from enquiring about the case. To say that they believed that everything would have been done by their counsel takes them nowhere. It is very evident that the appellants were not diligent in prosecuting the matter and very casual about the proceedings. Under these circumstances, no sympathy or indulgence need to be shown to the appellants. The appeal is without merit and it is accordingly dismissed. P.R. Raman, Judge P. Bhavadasan, Judge sb.