IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 FAO.No. 194 of 2007() --------------------- AGAINST THE ORDER DATED 23/02/2007 IN IA. 2937 /2006 IN OS.237/2001 of PRINCIPAL SUB COURT,ERNAKULAM .................... APPELLANT/PETITIONER/DEFENDANT --------------------------------------------------- JOHN VARGHESE, S/O. VARKEY JOHN, AGED 56 YEARS, ABHAYAMMANA HOUSE, KOOROPPADA P.O., KOTTAYAM, NOW RESIDING AT 2/JAYASREE, GPO LANE, STATUE, THIRUVANANTHAPURAM-695 001. BY ADV. SRI.SABU GEORGE RESPONDENT(S): RESPONDENT/PLAINTIFF ------------------------------------ KERALA STATE CIVIL SUPPLIES CORPN. LTD., MAVELI BHAVAN, GANDHI NAGAR, KOCHI-682 020, REPRESENTED BY IT'S MANAGING DIRECTOR. ADV. SRI.R.LAKSHMI NARAYAN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 27/07/2009, THE COURT ON 28/07/2009 PASSED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO 194 OF 2007 -------------------------------------------------------- Dated 28th July 2009 Judgment RAMAN, J. This appeal is directed against the order refusing to condone the delay in filing the application for setting aside the ex parte decree and consequently dismissing the application for setting aside the ex parte decree. The appellant is the defendant in the suit. The suit was one for money, instituted by the Kerala State Civil Supplies Corporation. On the appointed day, the appellant was absent and the suit was decreed ex parte. Thereafter, he filed a petition to condone the delay of 958 days. The reason advanced in the application for delay is that he came to know about the suit only from a letter dated 22.6.2005 sent by the respondent/plaintiff, informing him about the ex parte decree. The plaintiff examined the defence counsel and produced Ext.C1 vakalath, which would clearly show that the appellant/defendant had entered appearance by engaging a lawyer and his plea that he came to know about the ex parte FAO 194/07 2 decree only from a letter received from the plaintiff, was thus proved to be false. The court in the circumstances, thought it fit not to grant any relief to the defendant. 2. We heard the parties. Even though the appellant's contention that he came to know about the ex parte decree only from the letter received from the plaintiff is disbelieved, he has also given a reason that he was in depressed state of mind and on coming to know about the decree, he was trying to settle the matter amicably as the decree itself was given for a huge amount of Rs.21 lakhs. Possibly, this contention was low cited of by the court below as the court was obsessed by the fact that the appellant has falsified his case by raising a wrong plea. At least the court below rather taking a pedantic approach, ought to have given one more opportunity, but on terms. We feel that the decree passed being for a huge amount of Rs.21 lakhs, an opportunity to contest the matter should be given to the appellant, however, on heavy terms. In the circumstances, we feel that an opportunity could be given to the appellant, if only an amount of Rs.3,00,000/- (Rupees Three Lakhs only) is FAO 194/07 3 deposited by him before the court below within six weeks from today (towards the plaint claim to be adjusted in case the suit is allowed), failing which the decree will stand and in case the deposit is made, the decree will stand set aside. The appeal is disposed of as above. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta FAO 194/07 4