IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 FAO.No. 185 of 2007() --------------------- AGAINST THE ORDER DATED 15/01/2007 IN IA.3668/06,3669/06 IN OS.308/2004 of II ADDL.SUB COURT,KOZHIKODE .................... APPELLANT/PETITIONER: ------------------------------------- JOLLY MATHEW, AGED 44 YEARS, SON OF MATHEW, VENNA PARAMBIL HOUSE, KOODARANJI AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH RESPONDENT(S): RESPONDENT: --------------------------------------------- M.P. BASHEER, AGED 46 YEARS, SON OF AHAMED KUNHI, MUKKOOTU PURAYIL HOUSE, KUNNAMANGALAM AMSOM AND DESOM, KOZHIKODE TALUK. ADV. SRI.C.P.MOHAMMED NIAS FOR R1 SRI.SRINATH GIRISH FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 06/07/2009, THE COURT ON 13/07/2009 DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 185 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of July, 2009. JUDGMENT Bhavadasan, J, The defendant in O.S.308 of 2004, who had his applications, I.A. 3668 of 2006, filed for condoning the delay in filing the petition to set aside the ex-parte decree and I.A. 3669 of 2006 to set aside the ex-parte decree, dismissed, is the appellant. 2. The suit was one for money. The claim made was for Rs.9,50,000/-. Petitioner claims that the claim is a fraudulent one. However, when the case was posted on 5.1.2006 for evidence, for the reasons beyond his control, the petitioner could not appear before court. The suit was decreed ex-parte. I.A. 3669 of 2006 for setting aside the ex-parte decree and I.A. 3668 of 2006 for condoning the delay were filed. Petitioner pointed out that his brother's son was undergoing prolonged treatment and the appellant was attending to him. It is also stated that there was a slight mistake in noting the date of posting also by Advocate clerk. F.A.O. 185/2007. 2 Pointing out that there was no wilful laches or negligence on the part of the appellant, he prayed for setting aside the ex-parte decree and to permit him to have his case contested on merits. 3. The petitions were resisted by the respondent. He pointed out that there was no basis for the claim of the petitioner and he is speaking utter falsehood. There is no reason as to why the petitioner could not appear before the court on the day on which the case was posted for his evidence. Pointing out that no sufficient cause is made out for condoning the delay and setting aside the ex-parte decree, the respondent prayed for dismissal of the petitions. 4. On a consideration of the materials before it, the court below found that the absence of the petitioner on the day on which the suit was posted for his evidence was not satisfactorily explained. It was also found that his claims were not true. Accordingly, the petitions were dismissed. 5. Before this court also, the same contentions were taken by the appellant. It is urged before this court that he had to attend to his brother's son, who was undergoing treatment for cancer and therefore F.A.O. 185/2007. 3 he could not attend to his suit. He also urged that there was a mistake in noting the date of posting of the suit for trial. 6. The lower court had noticed that the applications were filed after six months of the decree. It is interesting to note that the petitioner is a school teacher. The respondent was able to produce documents, which would show that the treatment of the brother's son of the petitioner was over in the month of September, 2005. The records produced by him would clearly indicate that the said person has been discharged long ago and was undergoing treatment at home. It is seen from the order of the court below that during the relevant period he had appeared in the Magistrate court, where a case was pending against him, on several occasions. It was also found that there was no material, which would indicate that the claims made by the petitioner are true. 7. In the light of the above facts and circumstances, it cannot be said that the court below was unjustified in dismissing the applications. One may notice that the claims put forward by the petitioner are found to be incorrect and untrue, and it shows that he had no interest in prosecuting the suit. It is also seen that he was attending F.A.O. 185/2007. 4 the school during the relevant period. The claim of the respondent that the only intention is to protract the proceedings seems to be well founded. Under those circumstances, the court below was justified in dismissing the petitions. This appeal is without merit and it is dismissed. There will be no order as to costs. P.R. Raman, Judge P. Bhavadasan, Judge sb.