IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 RSA.No. 452 of 2009() --------------------- AS.218/2008 of ADDL.DISTRICT COURT-I,MAVELIKKARA OS.173/2006 of MUNSIFF COURT,HARIPAD .................... APPELLANT: APPELLANT/DEFENDANT --------------------------------------- GOPALAKRISHNAN NAIR, S/O. RAGHAVAN NAIR, AGED 54 YEARS, AISWARYA, CHINGOLI MURI AND VILLAGE ALAPPUZHA. BY ADV. SRI.S.SANAL KUMAR RESPONDENT: RESPONDENT/ PLAINTIFF ------------------------ CHITHIRATHIRUNAL KERALA VARMA, AGED 54, S/O. RAMAVARMA KOYITHAMBURAN,KOYIKKAL KOTTARATHIL, PUTHUKUNDAM MURI, KATHIKAPPILLY VILLAGE,ALAPPUZHA. ADV. SRI.V.K.BALACHANDRAN FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER INI.A. NO. 1016 OF 2009 IN R.S.A. NO. 452 OF 2009 DISMISSED SD/- HARUN-UL-RASHID,JUDGE 25.8.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No.452 of 2009 ---------------------------------------- Dated this the 25th day of August, 2009 JUDGMENT The Second appeal is directed against the order in I.A No. 1917/2008 and the judgment and decree in A.S. No.218/2008 on the file of the Additional Court-I, Mavelikara against the judgment and Decree in O.S. No. 173/2006 on the file of the Munsiff Court, Harippad. The defendant in the suit is the appellant . The suit is for eviction of the plaintiff and for arrears of rent. The trial court decreed the suit exparte on 30.11 2006. The 1st appeal was filed belatedly with a petition for condoning the delay of 731 days in filing the same. The lower appellate court dismissed the petition for condoning delay and consequently the 1st appeal. The unsuccessful defendant in the suit has come up before this Court and filed this second Appeal. The parties hereinafter referred to as plaintiff and defendant as arrayed in the suit. 2. The defendant is a tenant of the shop rooms belonged to the plaintiff. Even though the lease agreement was terminated on 15.4.2005, the defendant had not cared to vacate the shop room and he defaulted the rent also. The plaintiff sent notice to the defendant demanding him to vacate the plaint schedule shop rooms and to hand over possession of the plaint schedule rooms But the defendant had not complied with that demand. Hence the suit. R.S.A.No.452 of 2009 -2- 3. The trial court posted the case to 10.11.2006. for filing the written statement by the defendant. Since no written statement was filed within the above said date an exparte decree was passed on 30.11.2006 for eviction and for realisation of arrears of rent . The defendant filed I.A No. 69/2007 to set aside the ex-parte decree. When the said I.A. was called on 9.8.2007 for evidence, the defendant was absent. The defendant then filed I.A. No.1950/2007 for reviewing the order of dismissal of I.A. No. 69/2007and filed I.A. No. 1951/2007 for condoning the delay of 100 days in filing the application for review. The trial court dismissed I.A.Nos 1950 & 1951 of 2007 finding that that there was no sufficient reasons for allowing the applications. 4. The defendant challenged the orders in I.A. Nos.. 1950 & 1951 of 2007 before this Court in writ petition No. 33706/2008. The writ petition was filed on 13.11.2008. This Court disposed of the writ petition stating that the proper remedy available to the defendant is to file an appeal against the exparte decree and judgment before the lower appellate court and stayed the delivery proceedings till 3.12.2008. Pursuant to the judgment passed by this court in writ petition No. 33706/2008, the defendant filed an appeal before the lower appellate court as A.S. No.218/2008 with a petition for condoning the delay of 731 days in filing the 1st appeal (I.A No. 1917 of 2008) The lower appellate court dismissed the delay condonation petition finding that there is no sufficient cause for condoning the delay. Consequently the lower appellate court passed the judgment dismissing A.S. No. 218/2008. The said order and judgment is under challenge in R.S.A.No.452 of 2009 -3- this Second appeal. 5. I have heard the counsel for the plaintiff and defendant. I am unable to find that the defendant was not vigilant in prosecuting the case for the reason that he could not file the written statement before the trial court in time. I find that sufficient time was not granted to the defendant for filing the written statement and to contest the case. However, the defendant was asked to file the written statement on 10.11.2006, without granting further time the exparte decree was passed within 3 weeks that is on 30.11.2006 Even though I.A No.69/2007 was filed within the time prescribed under the Limitation Act for setting aside the exparte decree, the said application ended in dismissal for the reason that he was absent. The reason for his non- appearance stated that he was ill, may be true,he has not cared to produce the Medical certificate before the trial court. The defendant again prosecuted the matter by filing I.A No. 1950/2007 to review the order in I.A No. 69/2007 . Somehow by that time there occurred a delay of 100 days. The defendant also filed I.A No. 1951/2007 for condoning the said delay. The court held that there are no sufficient reasons for condoning the delay in filing I.A.No.1950/2007. I am of the view that if a liberal view was taken by the trial court in the suit, the suit could have been disposed of on merits and could have avoided further challenge by the defendant before the higher courts. The exparte decree was passed by the learned Munsiff without examining the contentions of the defendant. My considered view is that this is a fit case for giving an opportunity to the defendant for contesting the matter on merits. For the R.S.A.No.452 of 2009 -4- above said reasons the judgment and decree under appeal and the order in I.A. No. 1917/2008 are set aside . The matter is remanded to the trial court for fresh disposal in accordance with law. The trial court is directed to take up the case for trial and dispose of within a period of 9 months from today 6. The learned counsel for the respondent/plaintiff submitted that the trial court held that the rent is in arrears and that the plaintiff is entitled to Rs.1,500/- per month from 16.4.2005 till eviction of the plaint schedule rooms to the plaintiff. In the counter affidavit filed by the plaintiff, she claimed that the arrears of rent from 16.5.2005 till 30th July 2009 is Rs. 78,300/- . In the circumstances I direct the defendant to pay Rs. 50,000/- towards rent arrears in two equal instalments The first instalment shall be paid within one month from today and the balance amount within two months thereafter. The appellant shall deposit Rs.1,500/-regularly in the account of the plaintiff as monthly rent on or before 5th day of every month till the disposal of the suit If the defendant fails to pay the first instalment and the second instalment within the period stated above or defaulted in paying the monthly rent consecutively three times, the judgment and decree dismissing the suit shall revive and it is open to the plaintiff the entire amount in execution (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No.452 of 2009 ---------------------------- JUDGMENT 25th August, 2009