IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 FAO.No. 246 of 2009() ------------------------------ AGAINST THE ORDER DATED 09/03/2009 IN IA.11/2009 IN OS.158/2007 of ADDL.SUB COURT, THALASSERY .................... APPELLANT/PETITIONER/DEFENDANT: ------------------------------------------------------ VINOD.K.K., S/O.KUMARAN, AGED 45 YEARS, KALLARA HOUSE, ACHUKULANGARA, PARAL P.O., THALASSERY, KANNUR DISTRICT. BY ADV. SRI.C.P.PEETHAMBARAN RESPONDENT(S): RESPONDENT/PLAINTIFF: --------------------------------------------------------------- RAJEEV.K.M., S/O.KANNAN, KUCHICHAL MALAYIL HOUSE, VILLIAPPALLY AMSOM, THIRUMANA DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. ADV. SRI.P.B.SAHASRANAMAN FOR R1 SRI.T.S.HARIKUMAR FOR R1 SRI.K.JAGADEESH FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 30/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ F.A.O.No.246 of 2009 ---------------------------------------------- Dated, this the 30th day of November, 2009 J U D G M E N T K.M.Joseph, J. This appeal is directed against the order passed rejecting an application filed by the appellant to set aside the exparte decree passed against him. The respondent filed the suit for money which stands decreed exparte. 2. The order would show that the case was listed to 14.11.2008. On that day the counsel for the appellant sought time for cross examination of the plaintiff and it was allowed on payment of cost. The case was adjourned to 18.11.2008. On 18.11.2008 when the case was taken up for cross examination there was no representation for the appellant. Since the respondent/plaintiff did not have any further evidence the plaintiff's evidence was closed and the matter was posted to 19.11.2008 for the evidence of the appellant. On the said day both the appellant and his counsel were absent. Accordingly, the appellant was set exparte. The FAO 246/2009 -2- learned Sub Judge stated that the reason for the absence is quite unsatisfactory. It is further stated that on an earlier occasion also an exparte decree was passed against the appellant and subsequently it was set aside and that the IA is only to protract the matter. Under Order 17 Rule 2 ( c) of CPC the fact that the pleader of a party is engaged in another Court shall not be a ground for adjournment. The appellant has admittedly filed written statement and is having some contentions. So we think that taking a liberal view it is in the interest of justice a decision on merits is pronounced by the Court. Taking note of the conduct of the appellant, we feel that it cannot be an unconditional order. The appeal is allowed the impugned order is set aside and I.A. No.11/2009 filed by the appellant stands allowed subject to the following conditions: i) The appellant will deposit a sum of Rs.40,000/- (Rupees forty thousand only) within a period of one month from today. ii). The appellant pays a sum of Rs.3,000/- (Rupees three thousand only) as costs to the respondent within one FAO 246/2009 -3- month from today. iii). If both the above conditions are satisfied the appeal will stand allowed and the impugned order set aside as aforesaid. If the amounts are not deposited the appeal will stand dismissed. If the appellant complies with the conditions as aforesaid, the Sub Court, Thalassery will take up the suit and dispose of the same on or before 15th January, 2010. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS