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 15TH JULY 2010 / 24TH ASHADHA 1932 FAO.No. 115 of 2010() --------------------- OS.719/2003 of PRL.SUB COURT,THRISSUR .................... APPELLANT/RESPONDENT/DEFENDANT: ----------------------------------------- MOHAMMED A.NIZAR @ NAZER KADAVANTHOT S/O.KAMMUKUTTY HAJI, KADAVANTHOT HOUSE, P.O.KURANNIYUR, CHAVAKKAD TALUK, THRISSUR DISTRICT REPRESENTED BY HIS FATHER AND POWER OF ATTORNEY HOLDER, K.KAMMUKUTTY HAJI. BY ADV. SRI.T.A.SHAJI SMT.MALU JOHN RESPONDENT/RESPONDENT/PLAINTIFF: ------------------------------------ THE MATHRUBHUMI PRINTING & PUBLISHING COMPANY LTD., MATHRUBHUMI BUILDINGS, K.P.KESAVA MENON ROAD, CALICUT-673001, REPRESENTED BY ITS MANAGING DIRECTOR, M.P.VEERENDRA KUMAR. BY ADV.SRI.THIYYANNOOR RAMAKRISHNAN SRI.ARUNKUMAR P. SMT.AMBIKA RADHAKRISHNAN THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 15/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------------------- F.A.O.No.115 OF 2010 ------------------------------------------- Dated this the 15th day of July, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. 1.The defendant in a suit for recovery of money based on a commercial transaction has filed this appeal against the common order by which the court below dismissed an application to set aside the ex parte decree and to condone the delay in filing that application. The suit was filed in 2003 and the claim is based on an alleged advertisement contract given by the plaintiff, a newspaper publisher, to the defendant. After filing written statement, according to the appellant, he left for Doha on 9.8.2005 and returned only on 13.12.2009. He says that he reposed confidence on the counsel engaged by him and had awaited information of the listing of the case, however, that he was not informed that the case was listed on 7.10.2006 and the matter was decreed FAO.115/10 2 ex parte. It is pleaded that he came to know about the fact only when execution proceedings were initiated and his property brought to sale and thus he applied to have the ex parte decree set aside. 2.The plaintiff filed counter affidavit challenging the appellant's claim that he had been in Doha from 9.8.2005 to 13.12.2009. The plaintiff also alleged that there was no vigilance but only neglect on the part of the defendant. 3.In support of the application to set aside the ex parte decree, the defendant/appellant did not adduce any evidence. The court below dismissed the applications. 4.We do not find any legal infirmity or jurisdictional error in the impugned order. If we were to look at the question of appreciation of evidence by the court below, we have necessarily to conclude that except affidavit against affidavit, there was nothing to show that the plaintiff was not in India. FAO.115/10 3 Yet, the learned counsel for the appellant points out that the defendant/appellant had substantial contentions in opposition to the plaint claim and that he had filed written statement. We may take it that serious contentions may have to be put to trial. But we have also to take into consideration the fact that the plaintiff had obtained the decree after adducing oral and documentary evidence. This is the specific plea of the plaintiff in the counter affidavit before the court below. 5.Taking the over all facts and circumstances into consideration, we are inclined to grant the appellant/ defendant an opportunity to contest the suit on merits of contentions. 6.In the result, this appeal is disposed of in the following terms: (i) The impugned common order is set aside on condition that the entire decree debt, with all accruals thereon as on today, is deposited by the defendant before the court below FAO.115/10 4 within a period of two months and the court below will permit the plaintiff to withdraw the said amount on furnishing security to the satisfaction of the court below. (ii) The appellant will pay to the plaintiff an amount of Rs.20,000/- as costs payable to the learned counsel appearing for the respondent before this Court within a period of one month. (iii) If any among conditions (i) and (ii) is not satisfied, this judgment will stand vacated automatically and the impugned order will stand restored and the court below will proceed accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.15/07.