IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 17TH JUNE 2010 / 27TH JYAISTHA 1932 FAO.No. 55 of 2010() -------------------- OS.161/2008 of SUB COURT, PALA .................... APPELLANT/PETITIONER/DEFENDANT -------------------------------------------------- JOSE,S/O.DEVASSIYA,AGED 53, MEPPRAKAROTTU HOUSE,KADANADU KARA,KADANADU VILLAGE,MEENACHIL TALUK,PALAI. BY ADV. SRI.MATHEWS K.PHILIP SMT.T.MANASY RESPONDENT(S): COUNTER PETITIONER/PLAINTIFF ------------------------------------------- RAMACHANDRAN,S/O.NARAYANAN,AGED 44 YRS, KOLLAPPALLIL HOUSE,IMKOMPU KARA,VALLILAPPILLY VILLAGE,MEENACHIL TALUK. ADV. SRI.P.C.HARIDAS THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 17/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------------------- F.A.O.No.55 OF 2010 ------------------------------------------- Dated this the 17th day of June, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. 1. A suit filed in 2008 for realisation of money based on a cheque was decreed ex parte on 20.10.2009. On the ground that while he was on tour as an officer of HDFC, summons was received by his wife and she misplaced it and also failed to inform him about the same, the defendant filed an application to set aside the ex parte decree and another application seeking condonation of delay in applying to set aside the decree. Though he pleaded that on coming to know about the suit, he made enquiries and made application before the court below, the grounds offered by him did not appeal to the court below and it was treated that there were laches on the part of the petitioner. FAO.55/10. 2 2.While it may be true that the petitioner or his wife did not mount the box to tender evidence before court, the respondent does not appear to have specifically denied the averment of the petitioner that he was on tour at the relevant point of time and that his wife had misplaced the summons. We do not find that the court below has taken note of any such objection by the plaintiff to the application to set aside the ex parte decree. Taking into consideration that the suit was for realisation of amount to the tune of Rs.1,19,000/- and that there were earlier transactions between the parties as mentioned by the learned counsel appearing on both sides and still further, that there was a proceeding between the parties on the allegation that the petitioner had committed offence punishable under Section 138 of the Negotiable Instruments Act, we deem it appropriate to give the petitioner an opportunity to contest the suit. For the aforesaid reasons, we set aside the impugned order of the court below, dated 20.10.2009 and allow I.A.Nos.1042/09 FAO.55/10. 3 and 1043/09 in O.S.161/08 of the Sub Court, Pala on condition that the appellant will pay the respondent an amount of Rs.5,000/- as costs payable to the counsel appearing for the respondent before this Court within two weeks and file a memo/receipt to that effect before the court below. The appeal is ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.28/06. Certified that appellant has paid Rs.5,000/- (Rupees five thousand only) as cost to the counsel for the respondent in compliance of the direction contained in the judgment dated 17.06.2010 in F.A.O.55/2010 vide memo c.f.3975/2010. Sd/- Registrar (Judicial)