IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 FAO.No. 22 of 2009() -------------------- AGAINST THE ORDER IN IA 2955/08 IN OS.219/2006 of PRL.S.C.,THALASSERY .................... APPELLANT/PETITIONER/DEFENDANT: --------------------------------------------------- M.M.MUNAWAR, S/O.LATE MUHAMMED KUNHI AGED 41 YEARS, RESIDING AT.PAYANGADI, EZHOME AMSOM, ERIPURAM CHENGAL DESOM, KANNUR TALUK AND DISTRICT. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENT(S)/RESPONDENT/PLAINTIFF: ----------------------------------------------------------- SOUTH INDIAN BANK LTD., KANNUR-THROUGH ITS BRANCH MANAGER. ADV. SRI.A.KUMAR FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 22 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of June, 2009. JUDGMENT Raman, J, This is an appeal against an order dismissing an application filed to set aside the ex-parte decree passed against the appellant. The appellant is the defendant in the suit. The suit is one for money. The suit was decreed on 23.7.2008. The contention raised in the application may be stated in brief as follows: 2. The plaintiff filed petitions for amendment, to receive documents and to receive witness list when the suit was originally listed for trial on 5.7.2008. Petitioner wanted time to file counter to two of the petitions filed. Subsequently the additional written statement was filed along with the additional draft issues. Petitioner wanted to produce certain documents by the plaintiff. On 16.7.2008 the plaintiff produced the documents and wanted the defendant to cross-examine the plaintiff. Since the Advocate was not in a position to cross-examine the plaintiff, the case was FAO.22/2009. 2 adjourned to 27.8.2008. On that day he filed a petition to remove the suit from the list. But that was not allowed. According to the appellant, consequent on production of the documents by the plaintiff, he wanted to take further steps and it is only for that purpose he was constrained to seek removal of the case from the list. The respondent contended that the appellant-defendant had been declared ex-parte once on 8.3.2007. Subsequently that was set aside on the request made by the appellant as per I.A. No. 1326 of 2007. This is the second time he is committing default by his non-appearance. The documents directed to be produced were produced on 16.7.2008, on which day the appellant was not present and the lawyer sought time for cross- examination. The court allowed that prayer and adjourned the case to 21.7.2008. On that day the petitioner and his counsel were not present and he did not explain the reason for his non-appearance on 23.7.2008. Thus ample opportunities have been given to the petitioner to go through the documents produced in the court. Case had come up for trial on 14.3.2008 and again on 5.7.2008. No steps were taken to summon any document. The court below after considering the rival FAO.22/2009. 3 submissions made by the parties found that after listing the suit for trial on 5.7.2008, it was adjourned and there were petitions for amendment and to receive documents. Those petitions were allowed. Additional written statement was allowed to be filed and the suit was posted for trial to 16.7.2008. Plaintiff filed proof affidavit on that day, but the defendant's counsel was not present. Case was adjourned to 21.7.2008, but the case stood adjourned to 23.7.2008 as there was no sitting. It was on that day the petitioner filed an application for removal of the suit from the list. It was dismissed and it is in the circumstances that the defendant was set ex-parte. The court found that despite opportunities having been given to the appellant, he did not file the same and there is no justification to set aside the ex-parte order. Accordingly, the applications were dismissed against which the present appeal is filed. 4. The fact remains that after amendment of the plaint and receiving all documents, the appellant had been given opportunity to amend his written statement and he had actually filed additional written statement. He knew therefore as to what is the additional plea made in FAO.22/2009. 4 the additional written statement. Therefore, if there is any document required to be produced by the appellant, nothing prevented him from producing the same. If those documents were not in the possession of the appellant there was ample time for him for summoning those documents. Anyway, the court recorded that all the documents have been produced on 16.7.2008. Therefore the request made thereafter on 23.7.2008 for removing the case from the list is not justified. Counsel appearing for the petitioner/appellant could have cross-examined the plaintiff. But he was not present. We do not find that there is any illegality committed by the court below. But every litigant desires to have a decision on merits and courts leaning towards delivering substantial justice cannot be rigid in the matter of condonation of delay or take a pedantic approach. So viewed, in the larger interests of justice and taking a lenient view, we think that the court could have allowed the application on terms. However, now that a decree has been passed, the proper course open to this court is to allow this appeal on terms. FAO.22/2009. 5 Accordingly, we allow this appeal on condition that the appellant shall deposit an amount of Rs.10,000/- by way of costs, which amount shall be deposited in the court below within one month. In case the said amount is deposited, the court below will take on its file the suit O.S. 219 of 2006 and proceed from the stage where it was stopped earlier. In case the amount is not deposited, the appeal will stand dismissed. In case the plaint claim is not allowed in full, after adjudication, the amount of Rs.10,000/- may be adjusted towards the decree amount. P.R. Raman, Judge P. Bhavadasan, Judge sb.