IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 FAO.No. 351 of 2007() --------------------- AGAINST THE ORDER DATED 31/07/2007 IN IA 1268/07,1269/07 IN OS.140/2002 of ADDL.SUB COURT, IRINJALAKUDA .................... APPELLANT/PETITIONER/DEFENDANT -------------------------------------------------- CHANDRAN, AGED 60 YEARS, S/O.THOZHUTHUNGAPARAMBIL NANU, ADICHILY DESOM, MELOOR VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.V.M.KRISHNAKUMAR RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------- VELAYUDHAN, S/O.THANKOORAN SANKARAN, ADICHILY DESOM, MELOOR VILLAGE, MUKUNDAPURAM TALUK. ADV. SRI.JIJO PAUL THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 08/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO NO.351 OF 2007 -------------------------------------------------------- Dated 8th July 2009 Judgment BHAVADASAN, J. The defendant in OS No.140/02 before the Additional Subordinate Judge's Court, Irinjalakuda, who had his applications for condoning the delay and to set aside the ex parte decree were dismissed, is the appellant. The suit was one for money. The allegation was that the defendant had borrowed money from the plaintiff for business purpose. A sum of Rs.1,40,000/- was due from him. The appellant had issued a cheque for the said amount from his account at Meloor Service Co-operative Bank. The cheque was dishonoured and hence the suit. The appellant on getting summons said that he had engaged Advocate Jayaraj for conducting the case. A written statement was also filed on his behalf. According to the appellant, he was told by his counsel that he will be informed when the case is listed for trial, in due course. The appellant claimed that thereafter, he had no information from his counsel FAO 351/07 2 and therefore, he could not come to the court thereafter. However, he was arrested in a criminal case on 04.04.2007 and thereafter, when he enquired, he came to know that the suit had already been disposed of ex parte. He filed two petitions namely, IA Nos.1268/07 and 1269/07 were filed, one to set aside the ex parte decree and the other to condone the delay in filing the petition to set aside the ex parte decree. The appellant narrated the entire facts and pointed out that there was no wilful laches or negligence on his part in not appearing before the court below. According to him, he bona fide believed that his Advocate would inform him regarding the posting of the case and remained under that impression. It is only after his arrest on 04.04.2007 that he came to know about the passing of the ex parte decree. He pointed out that unless the suit is disposed of on merits, irreparable injury would be caused to him. The respondent in the application resisted the petitions. It is pointed out by him that there is no merit in the contentions now taken by the appellant. 2. It seems that neither side had adduced any evidence. The court below on perusal of the records found that in fact, FAO 351/07 3 Advocate Jose Perepadan was appearing on behalf of the appellant and not Advocate Jayaraj. On that finding, the court below came to the conclusion that there was sufficient reason made out to condone the delay and accordingly dismissed both the petitions. 3. It may be true that the appellant was represented by Advocate Jose Perepadan. According to the appellant, Advocate Jayaraj and Advocate Jose Perepadan were in the same office and they were doing common practice. It is also pointed out that the appellant was not given an opportunity to adduce evidence in support of his case for condonation of delay. 4. The suit was one for recovery of money based on a dishonoured cheque. It is seen that the appellant was arrested in a criminal case in relation to the said cheque. The appellant has pointed out that in fact, he had engaged Advocate Jayaraj for conducting his case and the appellant was not aware that the suit has been listed for trial. It is significant to notice that the defendant had filed a written statement which shows that he was inclined to contest the case. It is also claimed that no opportunity FAO 351/07 4 was given to adduce evidence to the appellant to establish his stand. It needs to be noticed that there is no finding of the court below that the defendant was a consistent defaulter and his attempt was only to drag on the proceedings. In a case where the defendant has filed a written statement, contesting the claim made by the plaintiff, it is difficult to believe that he has deliberately abstained from the court, inviting an ex parte decree. One cannot omit to note that Advocate Jayaraj was practising with Advocate Jose Perepadan and so, the claim of the appellant could be true. Whatever that be, these are all matters which are to be considered by the court below. The court below ought to have given an opportunity to adduce evidence to establish his case. The dismissal of the application by the court below has to be interfered with. The appeal is accordingly allowed. The matter is remanded to the trial court for fresh consideration in accordance with law after giving an opportunity to both sides to adduce evidence if they so choose. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE FAO 351/07 5 sta FAO 351/07 6