IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 12TH MARCH 2009 / 21ST PHALGUNA 1930 WP(C).No. 3742 of 2009(U) ------------------------- CMA.11/2008 of SUB COURT,NEYYATTINKARA OS.419/2005 of I ADDL.MUNSIFF COURT.,NEYYATTINKARA .................... PETITIONER(S): ------------------------- J.HARI KUMAR, LEKSHMI NILAYAM, NAVODAYA LANE, MARANALLOOR DESOM, MARANALLOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADVS. MR.NAGARAJ NARAYANAN, MR.RAJAN VELLOTH, MR.SAIJO HASSAN, MR.A.S.SABU, MR.BENOJ C .AUGUSTINE, MR.PRATHAP PILLAI. RESPONDENT(S): --------------------------- SOMAN ASARI, SOMA SOUDAM, KUVALASSERY, MARANALLOOR DESOM, MARANALLOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT. R1 BY ADVS. MR.J.HARIKUMAR, MR.HARIKUMAR.S. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.3742 of 2009 --------------------------------------------- Dated this the 12th day of March, 2009 JUDGMENT The petitioner is the defendant in O.S.No.419 of 2005 on the file of the court of the I Additional Munsiff, Neyyattinkara. The suit was listed for trial on 13.9.2006. The petitioner did not appear before court. He was set ex-parte. The trial court passed an ex-parte decree on 5.10.2006. On 6.12.2006, the petitioner filed an application to set aside the ex-parte decree. The trial court dismissed that application by the order dated 31st July 2007. That order was confirmed in C.M.A.No.11 of 2008. The Writ Petition is filed challenging the order and judgment. 2. The petitioner is working as Camp Superintendent in NCC unit. It is stated that he met with an accident on 13.9.2006 and he was under the treatment in NIMS Hospital, Neyyattinkara. The suit was listed for trial during the period of his treatment. Therefore, he could not appear before court. The petitioner stated that there was no laches on his part and he was prevented by sufficient cause from appearing before court on the WPC No.3742/2009 2 date on which the suit was listed for trial. The petitioner also stated that he came to know of the ex-parte decree only on 17.11.2006. The application was opposed. The petitioner was examined as PW1. He stated, relying on Ext.A1 photocopy of the certificate issued by the Commanding Officer, Kerala Naval Unit, that he was compelled to be at the camp from 2nd August 2006 to 17th August 2006. He also stated that it was not possible for him to take leave till 13th September 2006. The trial court held that the petitioner did not offer any explanation for not informing his counsel about his inability to appear before court on which date the suit was posted for trial. No application was also filed for adjournment of the case on 13.9.2006. The trial court came to the conclusion that there was no sufficient cause for non appearance of the petitioner. It was also held that the application was filed beyond the period of limitation and no application for condonation of delay was filed. 3. The appellate court also took the view that the petitioner has not proved that he was prevented by sufficient cause from appearing before court on the date on which the suit was listed for trial. Accordingly, the appeal was dismissed. If WPC No.3742/2009 3 the evidence is analysed by mathematical precision, it could be said that the courts below are right in holding that the petitioner has not proved that he was prevented by sufficient cause from appearing before court on the date on which the suit was listed for trial. The petitioner is admittedly working in NCC office. It is to be noted that the application for setting aside the ex-parte decree was filed without much delay. The suit is now disposed of without affording an opportunity to the petitioner to adduce evidence. So, I am of the view that the courts below could have afforded an opportunity to the petitioner to contest the case on the merits at least on terms and on stringent conditions. 4. In the facts and circumstances of the case, I am inclined to set aside the ex-parte decree only on condition that the petitioner deposits 50% of the decree amount before the trial court. If the petitioner fails to deposit the amount, I am of the view that he should not get the benefit of the order. Accordingly, the Writ Petition is disposed of as follows: The ex-parte decree passed against the petitioner will stand set aside on condition that the petitioner shall deposit before the trial court on or before 30.5.2009, 50% of the decree amount. If WPC No.3742/2009 4 the petitioner fails to deposit the amount as aforesaid, the order and judgment passed by the courts below will stand and the Writ Petition will stand dismissed. On deposit of the amount as aforesaid, the trial court shall post the suit for trial in the special list on a convenient date. The petitioner shall not be entitled to ask for unnecessary adjournment. In case the suit is restored, the court below shall make an endeavour to dispose of the suit before 31st July 2009. K.T.SANKARAN, JUDGE csl