IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 AS.No. 785 of 1997(E) --------------------- OS.37/1977 OF I ADDL.DISTRICT COURT, ERNAKULAM .................... APPELLANT (DEFENDANTS 3 AND 5): ----------------------------------------------------- 1. P.E.VARGHESE, PUNNASSERIL HOUSE, MAZHUVANNOOR KARA, MAZHUVANNOOR VILLAGE. 2. N.D.MATHEW, NEDUMPRATHU, EZHIPRA KARA, MAZHUVANNOOR VILLAGE. BY ADV.SRI.S.VIDYASAGAR SRI.T.K.VENUGOPALAN RESPONDENTS (PLAINTIFFS & DEFENDANTS 1, 2, 4 AND 6 TO 8): --------------------------------------------------------------------------------------------- 1. D.PAUL, SON OF DANIEL KATHANAR, NEDUMPURATH HOUSE, EZHIPRAM KARA, MAZHUVANNOOR VILLAGE. 2. K.V.POULOSE, SON OF VARKEY, KULANGATTIL HOUSE, SOUTH MAZHUVANNOOR, MAZHUVANNOOR VILLAGE, KUNNATHUNAD TALUK. * 3. FR. M.P.VARGHESE, MARKARA HOUSE, KARAKUNNAM KARA, MUVATTUPUZHA P.O.. (* DELETED) 4. FR. P.P.JACOB, ASAMANNOOR KARA, ASAMANNOOR VILLAGE, KURUPPAMPADY, KUNNATHUNAD TALUK. 5. M.V.ITTAN, MAMPAKATTU HOUSE, NORTH MAZHUVANNOOR KARA, MAZHUVANNOOR VILLAGE, KUNNATHUNAD TALUK. 6. POULOSE MAR ATHANASIUS METROPOLITAN, RESIDING AT BUILDING OF EVANGALISTIC ASSOCIATION OF THE EAST, IRINGOLE KARA, KUNNATHUNAD TALUK. 7. THOMAS MAR DIONYSIUS METROPOLITAN, VALIAPALLY CHURCH, KOTHAMANGALAM VILLAGE, KOTHAMANGALAM TALUK. AS.No. 785 of 1997(E) 8. GEEVARGHESE MAR GREGORIOS, RESIDING AT ST. GEORGE ORTHODOX CHURCH, PERUMPILLY KARA, MULANTHURUTHY VILLAGE, KANAYANNUR TALUK. * THE NAME OF THE 3RD RESPONDENT DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT, VIDE ORDER DATED 14/08/07 IN APPEAL MEMO. ADV. SRI.BIJU ABRAHAM FOR R1, R2 THIS APPEAL SUITS HAVING COME UP FOR ADMISSION ON 16/10/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N.KRISHNAN, J ===================== A.S. No.785 OF 1997 ===================== Dated this the 16th day of October 2008 JUDGMENT This appeal is preferred against the judgment an decree of the I Addl.District Court, Ernakulam in O.P.No.37 of 1977. It is a suit relating to church. There were 8 defendants in the suit. Defendants 7 and 8 remained ex parte earlier and subsequently other defendants also remained ex parte. The 6th defendant died and thereafter no step was taken to implead legal representatives of D6 and the plaintiff did not want to implead the successor of D6. On the basis of the affidavit the court decreed the case ex parte. It is contended that I.A.No.1457 of 1997 was filed to set aside the ex parte decree. A perusal of the order in the said application would show that there was no representation for the petitioners. The court dismissed the application mainly on the ground that defendants had already preferred an appeal as A.S.No.785/1997 and it is pending before the High Court. It was under those circumstances, the petition was dismissed. So in the light of the reasoning given by the trial court for dismissing the application for setting aside ex parte decree, it will not be a bar to entertain the appeal. AS 785/1997 -:2:- 2. The next question to be considered is regarding the appeal. Learned counsel for the respondents had placed a decision of this Court reported in Baba @ Asees v. Madhavan and others(1995(2) KLJ 706). It was a case where this court was considering the area of consideration of an appeal when an ex parte decree is passed. The question to be determined in such cases was held to be limited to the question whether the decree can be sustained on the materials on record. I had perused the judgment. It was only on the basis of an affidavit the suit has been decreed. No document had been marked. Even a prima facie consideration of the materials is not there in the judgment. This Court has also held in many cases that even when the defendants remained ex parte the court is not obliged to grant a decree in favour of the plaintiff and the suit can be dismissed. So whenever a judgment is passed by a court of law, the court must take into consideration the materials and then arrive at a decision whether the plaintiff is entitled to a decree or not. Such a consideration is not seen done in this case. I do not want to go into the other details for the reason that any comments made on that will adversely affect one of the parties. Therefore, I am satisfied that the judgment and decree passed by the courts below requires interference and therefore they are set aside and the matter is remitted back to the trial court for fresh disposal after affording equal opportunity to both sides to AS 785/1997 -:3:- adduce both oral and documentary evidence in support of their respective contentions and then dispose of the matter in accordance with law. Parties are directed to appear before the trial court on 27.11.2008. Being a 1977 suit, the court below shall bestow its best care to see that the matter is disposed of as expeditiously as possible. A.S. is disposed of as above. M.N.KRISHNAN, JUDGE Cdp/-