IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 FAO.No. 225 of 2005() --------------------- AGAINST THE ORDER DATED 10/03/2005 IN IA 2742 2004 IN OS.199/2002 of PRL.SUB COURT,THRISSUR .................... APPELLANT/PETITIONER/2ND DEFENDANT -------------- PRAVEEN MENON, "PRABHALA", MANIKKATH CROSS ROAD, ERNAKULAM VILLAGE DESOM, KANAYANNUR TALUK. BY ADV. SRI.BIJU ABRAHAM RESPONDENT(S): RESPONDENTS/PLAINTIFF & DSEFENDANTS 1 & 3 -------------------- 1. KOTTAYIL FINANCIERS, UNITED SHOPPING COMPLEX, POOTHOLSE DESOM, TRISSUR VILLAGE & TRISSUR TALUK. 2. SOLARIES SYSTEM PROVATE LIMITED, BUILDING NO.28/2416(3), SANTHI NAGAR, KADAVANTHARA VILLAGE, KANAYANNUR TALUK. 3. USHA PRAVEEN, W/O.PRAVEEN MENON, "PRABHALA", 32/2970, MANIKKATH CROSS ROAD, ERNAKULAM VILLAGE DESOM, KANAYANNUR TALUK. BY ADV. SRI.P.K.SAJEEV FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 10/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. ------------------------------- F.A.O. No.225 of 2005 ------------------------------- Dated this the 10th June, 2009 J U D G M E N T Bhavadasan, J. Petitioner before the court below, whose petition to set aside the ex parte decree passed was dismissed, is the appellant herein. 2. The suit was one for money. There are three defendants in the suit and the defendants were represented by a common counsel. The suit was listed for trial on 24.5.2004. On that day, all the three defendants were absent. Subsequently, they were set ex parte and ex parte decree was passed. Thereafter, the second defendant in the suit filed I.A.No.2742/2004 to have the ex parte decree as against him set aside. The reason given by him was that his father-in-law had been hospitalised in New Delhi and he passed away on FAO.No.225/2005 2 19.5.2004 and ceremonies were completed only on 21.5.2004. Therefore, he could not be present before the court on 24.5.2004. In the above circumstances, he was also unable to give necessary instructions to the counsel. The court below was not inclined to accept the said reason and dismissed the petition to set aside ex parte decree as against him. 3. The learned counsel appearing for the appellant pointed out that the court below was not justified in dismissing the petition filed by the appellant to set aside the ex parte decree, without even considering the reasons for non appearance on the day fixed for trial. His contention was that he was not liable to pay the amount due from the first respondent. 4. The learned counsel appearing for the first respondent, on the other hand, pointed out that the appellant before this Court had not impleaded the other defendants against whom also ex parte decree was passed. The conduct of the appellant is suspicious. FAO.No.225/2005 3 5. The fact remains that the appellant had filed a written statement disowning his liability to pay the amount. He has also given cogent reasons for his non-appearance before the court below on 24.5.2004, on which date the case was listed for trial, for which was reasons beyond his control. In such circumstances, we are of the view that an opportunity should be given to the appellant to have the case decided on merits, but on terms. 6. In the result, the appeal is allowed. The ex parte decree as against the appellant is set aside, on condition that the appellant pays a sum of Rs.1500/= to the first respondent through counsel before the court below within a period of one month from today, failing which this appeal shall stand dismissed. On payment of cost, the court below shall take the case on file as against the appellant/2nd defendant alone, and dispose of the suit on merits, in accordance with law. FAO.No.225/2005 4 The parties shall appear before the court below on 4.8.2009. P.R.RAMAN, JUDGE P.BHAVADASAN , JUDGE. nj.