IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 RFA.No. 210 of 2009(C) --------------------------------- (O.S. NO. 212/2000 OF THE SUB COURT, THALASSERRY) ........ APPELLANT/1ST DEFENDANT: --------------------------------------------- MANOJ MENON, S/O. MADHAVA MENON, AGED 35, BUSINESS, PROPRIETOR, MALAVIKA TIMBERS, POLIBETTA, VIRAJPETA, KARNATAKA STATE, RESIDING AT ANUPAMA, P.O. PAZHAYANNUR, TRICHUR DIST. BY ADVS. SRI.T.SETHUMADHAVAN, SRI.PUSHPARAJAN KODOTH, SMT.ANJU P.NAIR. RESPONDENTS/PLAINTIFF & DEFENDANTS 2 & 3: ------------------------------------------------------------------------ 1. E.K. ABDUL HAMEED HAJI, S/O. MOIDEEN KUNHI HAJI, AGED 51, MANAGING PARTNER, PREMIER PLYWOODS, THAVAM, KANNUR TALUK. 2. B.S. THAMMIA, S/O. SOMAISH, AGED 41, BUSINESS, RESIDING AT NAPOKLU NADU, MADIKERI TALUK, KODAGU DIST., KARNATAKA STATE. 3. V.V. JOSE, S/O. VAREED, AGED 51, BUSINESS, RESIDING AT VADAKKAN HOUSE, PAZHAYANNUR.P.O., TRICHUR DIST., KERALA. R1 BY SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE, ADVS.SRI.JAMES ABRAHAM (VILAYAKATTU), R3 BY ADVS.SRI. RANJITH THAMPAN, SMT.P.A.ANITHA. THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = R.F.A.210 of 2009(Indigent) = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 18th day of May, 2010. Judgment Thottathil B.Radhakrishnan, J. 1.The first defendant has filed this appeal against a money decree granted on the strength of an agreement relating to a transaction in timber. The decree debt has now been grown to be around more than Rs.35 lakhs. 2.The first defendant filed written statement, but did not appear or adduce evidence before the court below. The suit was proceeded without setting him ex parte. Though remedy by way of reopening the decree by an application to set aside it as an ex parte one was available to him, he chose to file this appeal. By that time, there RFA210/09(Indigent) -: 2 :- was an inordinate delay. This Court refused to condone the delay. In the meanwhile, execution proceedings had gone ahead. The Apex Court interfered with the matter and remitted the case for consideration on merits. Essentially therefore, the question of delay went to be answered in favour of the first defendant, appellant. He was made liable to pay costs for that. 3.With the passage of time, when this matter comes up for final hearing today, we heard the learned counsel for the appellant, the first defendant and the first respondent, the plaintiff quite in extenso touching the different aspects of the merits of the case. Having regard to the peculiar facts and circumstances of this case, we also probed into the sustainability of the decree on the basis of the materials already on record vis- a-vis the chances of the sustainability of the said findings, in the event of the first defendant being extended an opportunity to adduce RFA210/09(Indigent) -: 3 :- evidence by way of remit exercising authority under Order 41 Rule 23 or by granting him an opportunity to adduce further evidence in terms of Order 41 Rule 27 CPC. Looking at the nature of the transaction and the quality of the evidence given by D.W.3, we are of the view that ends of justice would be satisfied, if we accept the plea of the appellant that he be given an opportunity to adduce further evidence and contest the matter before the court below. Taking this into consideration, we are of the view that ends of justice would be satisfied, if the decree is set aside and the case remitted for retrial on condition that the appellant, the first defendant pays costs of Rs.1.5 lakhs to the plaintiff. In the result, the impugned decree is set aside and the suit is remitted for retrial and hearing on condition that the appellant, the first defendant, pays the first respondent, plaintiff an amount of Rs.1.5 lakhs within two months from today. If such payment is not made, this order of RFA210/09(Indigent) -: 4 :- remit will stand vacated automatically. In the event of the payment of the aforesaid amount and a memo being duly filed before the court below, the suit will be taken up and proceeded. The court below may make every endeavour to expedite the final disposal and to render a verdict within an outer limit of six months from the date of first posting. Having regard to the nature of the decree that is being set aside, it shall be treated that the suit stands dismissed as against defendants 2 and 3. Thottathil B.Radhakrishnan, Judge. S.S.Satheesachandran, Judge. Sha/3105