IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932 FAO.No. 26 of 2004 --------------------------- [OS.NO.136/2002 OF ADDL.SUB COURT, THALASSERY] .................... APPELLANT/PETITIONER: ------------------------------------- E.K.SHYAM, AGED 41 YEARS, S/O. SUKUMARAN, PROPRIETOR, M/S.P&G ADVERTISERS, NETHAJI ROAD, KANNUR, RESIDING AT WELLESLY ROAD, THILLERI ROAD, KANNUR. BY ADV. SRI.C.K.SREEJITH. RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. THE FEDERAL BANK, ALWAYE, REP.BY ITS BRANCH MANAGER, KANNUR BRANCH. 2. K.BALAGOPALAN, AGED 48 YEARS, S/O. APPUKUNCHI ACHARI, RESIDING AT KIZHAKKAYIL, X/518, KANAKAVALLY ROAD, ELAYAVOOR, KANNUR DISTRICT. BY THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 12/10/2010, THE COURT ON 21/10/2010 DELIVERED THE FOLLOWING: prv. THOTTATHIL B. RADHAKRISHNAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 26 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of October, 2010. JUDGMENT Bhavadasan, J, Aggrieved by the order dated 10.1.2003 in I.A. 2204 of 2002 in O.S. 136 of 2002, the petitioner before the court below has come up in appeal. By the said order, the application filed by the defendants in the suit under Order 9 Rule 13 CPC to set aside the ex parte decree was dismissed by the court below. 2. In the nature of the contentions and the reliefs prayed for, it is felt that service of notice to the second respondent is not necessary. 3. The suit was one for money. The allegation was that the defendant had availed of a loan from the Federal Bank and had failed to repay the same. According to the appellant, he had entered appearance and filed vakalath. He had sought time to file written statement. He had filed his written statement on 11.9.2002. Later, he F.A.O.26/2004. 2 came to know that the suit was decreed ex parte. Since the mistake was due to an oversight by the counsel for the appellant, the counsel filed a petition with an affidavit seeking to have the ex-parte decree set aside. On 7.9.2002 the suit was posted for plaintiff's evidence. On 7.9.2002 the defendants filed an affidavit and the suit was taken up for disposal on 12.9.2002. The order of the court below shows that the written statement had been filed on 11.9.2002. But the court below was of the opinion that affidavit of the counsel is insufficient, and accordingly dismissed the petition. 4. One can only say that the act of the court below was unfortunate and uncalled for. It is clear from the records that there was a bonafide mistake committed by the counsel for the appellant and that had caused the delay in filing the written statement. It is unkind to decline the appellant an opportunity to have the case decided on merits. The court below ought to have taken a lenient view and granted the relief to the appellant. F.A.O.26/2004. 3 In the result, this appeal is allowed and the impugned order is set aside, the ex parte decree is set aside and the suit is restored to file as far as the appellant is concerned. The court below shall dispose of the suit in accordance with law. The parties shall appear before the court below on 2.11.2010. Thottathil B. Radhakrishnan, Judge P. Bhavadasan, Judge sb.