IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 FAO.No. 277 of 2004() --------------------- AGAINST THE ORDER DATED 12/07/2004 IN IA 262/04 IN OS.57/2003 of SUB COURT, PALA .................... APPELLANT ------------- SOMAN S/O. NARAYANAN, AGED 48 YEARS, KOODATHINAL HOUSE, THAMARAKKADU KARA, VELIYANOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT BY ADV. SRI.P.M.JOSHI RESPONDENT(S): --------------- THOMAS S/O. MATHAI, MUDAKKALIL, PULIYANOOR KARA, PULIYANOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.PHILIP T.VARGHESE FOR R1 SRI.THOMAS T.VARGHESE FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 19/08/2009, ALONG WITH CRP NO. 1335 OF 2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. ------------------------------- F.A.O. No.277 of 2004 & C.R.P.No.1335 of 2004 ------------------------------- Dated this the 19th August, 2009 J U D G M E N T Raman, J. Defendant in O.S.No.57 of 2003, on the file of Sub Court, Pala, is the appellant and the revision petitioner. The suit is one for realisation of an amount of Rs.2,36,175/= with 13% interest thereon. The suit was instituted as early as on 2003. Even though several adjournments were taken, the defendant did not file any written statement. Ultimately, when the suit was posted for trial, he was absent. Accordingly, he was declared ex parte and a decree was passed by the court below. Later he filed an application to set aside the ex parte decree along with a petition to condone the delay of 70 days in filing the same. The court below considered both these applications together and by a common order, dismissed the application for condonation of delay, as the court was not satisfied that the delay occurred due to any reasons beyond the control of the appellant and that FAO.No.277 of 2004 and CRP.No.1335 of 2004 2 there is anything to show that the delay occurred due to reasons as stated by him. Consequent upon the dismissal of the delay petition, petition to set aside ex parte decree was also dismissed. He has preferred the appeal as against the order dismissing the application to set aside ex parte decree and Civil Revision Petition has been filed against the order refusing to condone the delay. As both these cases are connected, these were heard together and disposed of. 2. According to the appellant, he was diligent in prosecuting the matter, though he happened to be absent on the day on which the case stood posted, and his absence was not due to willful negligence or laches on his part, but occasioned by the reason of his ill-health. According to him, on the day on which the case stood posted, while proceeding to the court, he suffered back pain and he underwent treatment in Primary Health Centre. He was advised rest and accordingly after completing the rest, he approached the court for setting aside the ex parte decree. The delay occurred due to the above fact. The court FAO.No.277 of 2004 and CRP.No.1335 of 2004 3 below found that the certificate produced by him did not show that he was admitted in the Primary Health Centre. Though the reason for the delay is stated to be that he was indisposed of with back pain, the Doctor was not examined in the case. Coupled with this, he was not even prepared to file a written statement, despite taking adjournments for the same. Therefore, the court below dismissed the application for condonation of delay. The learned counsel for the appellant however pleaded that he may be given one more opportunity to contest the case on merits. 3. In the facts and circumstances of the case and in the light of the fact that the appellant did not mount the box nor the Doctor was examined in the case, it cannot be said that the court below was wrong in not accepting the medical certificate. 4. The learned counsel appearing for the respondent, would submit that the suit was filed as early as in 2003 claiming principle amount along with interest. Though the FAO.No.277 of 2004 and CRP.No.1335 of 2004 4 above matters were pending before this Court since 2004, no steps were taken to dispose of the matter on an earlier date. 5. We find that like the appellant, equally the respondent could have also taken steps for getting early disposal of the matter. At any rate, these are not grounds to dismiss the appeal. The question is whether one more opportunity should be given to the appellant. But the totality of the facts, as narrated above, would clearly show that an opportunity to contest the matter on merits could be given, after setting aside ex parte decree, but only on heavy terms. In the circumstances, we direct that in case the appellant deposits an amount of Rupees One Lakh within a period of one month from today, the delay will stand condoned and the ex parte decree will stand set aside, and the suit will be restored to file. Along with the deposit, the appellant shall also file a written statement. The court below will dispose of the case expeditiously after pre-trial steps are over. In case, the amount is not deposited as aforesaid, these appeal and revision will FAO.No.277 of 2004 and CRP.No.1335 of 2004 5 stand dismissed and the decree passed by the court below will stand confirmed. Both the appeal and revision are disposed of as above. P.R.RAMAN, JUDGE P.BHAVADASAN , JUDGE. nj.