IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 30TH MARCH 2010 / 9TH CHAITHRA 1932 WP(C).No. 32326 of 2009(O) ---------------------------------------- CMA.18/2007 of ADDL.DISTRICT COURT-I,MAVELIKKARA OS.112/2000 of SUB COURT, MAVELIKKARA (IA.682/2006) .................... PETITIONER(S): ------------------------- GEORGE ALEXANDER, S/O.SRI.ALEXANDER, AGED 43 YEARS, RESIDING AT KUZHIYIL HOUSE, THAZHAKKARA MURI, MAVELIKKARA. BY ADVS. MR.P.GOPAKUMARAN NAIR MR.C.S.DIAS MR.N.K.SUBRAMANIAN RESPONDENT(S): -------------------------- P.I.JOHN, S/O.SRI. ISSAC, AGED 65 YEARS, RESIDING AT TINI VILLA, KOTTAR KAVU, MAVELIKKARA. R1 BY ADV. MR.B.RENJITHKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.32326/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE JUDGMENT IN CMA. 18/2007 OF THE ADDL. DISTRICT COURT, MAVELIKKARA.DTD. 18.3.2009. P2:- COPY OF THE CMA. 18/2007 FILED BY THE PETITIONER AGAINST THE RESPONDENT BEFORE THE ADDL. DISTRICT COURT, MAVELIKKARA DTD. 16.3.2007. P3:- COPY OF THE RECEIPT ISSUED BY THE RESPONDENT TO THE PETITIONER DTD. 2.9.2006. P4:- COPY OF THE RECEIPT ISSUED BY THE RESPONDENT TO THE PETITIONER DTD. 2.9.2006. P5:- COPY OF THE IA. NO.686/06 IN OS. 112/2000 FILED BY THE PETITIONER BEFORE THE SUB COURT, MAVELIKKARA DTD. 24.5.2006. P8:- COPY OF THE ORDER IN IA. 682/2006 IN OS. 112/2000 OF SUB COURT, MAVELIKKARA DTD. 18.11.2006. TRUE COPY P.A. TO JUDGE tss P. BHAVADASAN, J --------------------------- W.P.(C).No.32326 OF 2009 ----------------------------------- Dated this the 30th day of March, 2010 J U D G M E N T Petitioner is the defendant in O.S.112/2000 which is a suit for money. While the said suit was pending it seems that criminal proceedings were also initiated in two cases. The petitioner here in was found guilty and sentenced to imprisonment and to pay compensation in each case. In the appeal, appellate court confirmed the convictions and sentences. The matter was taken in revision to this court. This court modified the sentence by confining the sentence to imprisonment till rising of the court and compensation of Rs.40,000/- and Rs.75,000/-. The petitioner paid the said amounts on 2.9.2006. 2. While the things thus stood, suit was included in the list for trial. According to the petitioner he was affected with hepatitis and was hospitalised. Counsel filed I.A. Seeking adjournment. That was dismissed and suit was then posted to 25.3.2006 and judgment was pronounced on 31.3.2006. Immediately the petitioner filed I.A.682/06 in O.S.112/2000 to set aside exparte W.P.(c) No.32326/09 2 decree and to decide the suit on merits. The day on which the petition was posted he was absent and the court below dismissed the petition. The matter was carried in appeal as C.M.A.18/2007 before the additional District Court, Mavelikkara, but by the order dated 18.3.2009 the lower appellate court dismissed the appeal. It is the said order that is assailed in this petition. 3. The learned counsel appearing for the petitioner points out that there is no justification for the appellate court in dismissing the appeal. The petitioner had given valid reasons for his absence. There was no harm in giving an adjournment. Petitioner also pointed out that pursuant to the order in criminal proceedings he paid Rs.75,000/- and Rs.40,000/- to the respondent herein. There was no justification for the trial court passing the exparte decree. The learned counsel appearing for the petitioner relied on the dictum of the Apex court in G.P.Srivastava Vs. R.K.Raizada & Others 2000(3) SCC 54 in support of his contentions. 4. The learned counsel for the respondent pointed out that a long time after the suit, the written statement was filed. Thereafter suit was listed for trial. Petitioner sought adjournment but there was no supporting documents. So the trial court W.P.(c) No.32326/09 3 dismissed the petition. The learned counsel drew the attention of this court that petition to set aside the exparte decree was also dismissed by the court below since the the learned counsel for the petitioner was absent on that day and no justifiable reason was given. Therefore the court below had no option but to dismiss the petition. 5. The fact remains that exparte decree has been passed against the petitioner. It must be noticed that the day on which the case was listed for trial the petitioner was unable to attend the court for trial. The court below dismissed the application for adjournment without any justification. No harm would have been caused by listing the suit to another day and giving an opportunity to the defendant to have the suit decided on merits. 6. It is true that when the petition for setting aside the the exparte decree was taken up for consideration, the petitioner was again absent. The complaint of the respondent is that the petitioner is protracting the suit. One must remember that the petitioner would not deliberately remain absent inviting the risk of an exparte decree and not able to get it set aside. No harm would have been caused to the plaintiff by having this suit decided on merits. At any rate an amount of Rs.1,25,000/- has W.P.(c) No.32326/09 4 already been paid. Of course interest from the date of suit may also be due. 7. At any rate any injury or damage caused to the respondent can be compensated by awarding cost. 8. In the result, order in CMA.18 of 2007 is set aside and I.A.682/06 in O.S.112/06 shall stand allowed on condition that the petitioner pays a sum of Rs.1,500/- to the respondent within two weeks from the date of reopening of the court after summer vacation. On the payment being made the trial court shall restore the suit to file and dispose it of on merits as expeditiously as possible at any rate within three months from the date of restoration of the suit to file. P. BHAVADASAN, JUDGE. Sou.