IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 FAO.No. 126 of 2008() --------------------- AGAINST THE ORDER IN IA 1686/07, IA 1687/07 IN OS.79/2001 of SUB COURT, MANJERI .................... APPELLANTS/PETITIONERS/DEFENDANTS 1 TO 3. ---------------------------------------------------------------------- 1. M.S.P.ENGLISH MEDIUM HIGH SCHOOL, A SOCIETY REGISTERED UNDER THE SOCIETIES REGISTRATION ACT, REP.BY ITS MANAGER/COMMANDANT, M.S.P.MALAPPURAM. 2. PRESIDENT, PARENT TEACHERS ASSOCIATION, M.S.P.ENGLISH MEDIUM HIGH SCHOOL, MALAPPURAM. 3. THE SECRETARY, M.S.P. ENGLISH MEDIUM HIGH SCHOOL, MALAPPURAM. BY ADV. SRI.P.C.SASIDHARAN SRI.O.V.MANIPRASAD RESPONDENT(S): RESPONDENTS/PLAINTIFF & DEFENDANTS 4 TO 6 ------------------------------------------------------------------------------------------------- 1. M.K.FATHIMA, W/O.T.A.BASHEER, ANAKKAYAM VILLAGE, ERNAD TALUK, MALAPPURAM. 2. V.VALSAN, BUILDING CONSTRUCTION COMMITTEE CHAIRMAN, M.S.P.ENGLISH MEDIUM HIGH SCHOOL MALAPPURAM. 3. P.N.MUTHUKRISHNAN, PREVIOUS PRESIDENT, PARENT TEACHERS ASSOCIATION, M.S.P.ENGLISH MEDIUM HIGH SCHOOL, MALAPPURAM. 4. E.C.UMMAR, PREVIOUS PRESIDENT, PARENT TEACHERS ASSOCIATION, M.S.P.ENGLISH MEDIUM HIGH SCHOOL, MALAPPURAM. ADV. SRI.DINESH MATHEW J.MURICKEN FOR R1 SRI.P.V.BALAKRISHNAN FOR R1 SRI.JOSE KURIAKOSE (VILANGATTIL) FOR R2 & 3 SRI.JOSEPH A.VADAKKEL FOR R2 & 3 SRI.GEORGE KARITHANAM VARGHESE FOR R2 & 3 SRI.V.J.JOHN FOR R2 & 3 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 29/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 126 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of July, 2009. JUDGMENT Bhavadasan, J, Aggrieved by the order dated 19.12.2007 in I.A. 1686 of 2007 and I.A. 1687 of 2007 in O.S. 79 of 2001, the petitioners before the court below came up in appeal. 2. The suit was one for realisation of a sum of Rs.2,03,516/- with interest. Plaintiff had constructed a building for the defendants and money was due under that contract. The suit was listed for trial to 7.1.2006. Plaintiff was examined as P.W.1. Her husband was examined as P.W.2. It appears that thereafter a settlement was suggested and the matter was referred to Adalath. That did not materialise. On 31.5.2006 the suit was decreed. 3. After the decree, it is stated that the plaintiff approached the petitioners and had suggested a compromise. The petitioners would say that it was much later that they had FAO. 126/2008. 2 come to know about the ex-parte decree. According to the petitioners the litigation was being attended to by the Commandant and the PTA Secretary and since there were change in those offices, the suit could not be followed up. It is under those circumstances that it so happened that necessary instructions could not be given to the counsel. It is stressed by them that a written statement had been filed and that shows that the petitioners were prosecuting the matter diligently. It is only when notice in execution was received, the petitioners realised that a decree has been passed against them. Immediately thereon they filed the necessary petitions to set aside the ex-parte decree and to condone the delay in filing the petition to set aside the ex-pare decree. 4. The petitions were resisted by the respondents. It is pointed out that there is no bonafides in any of the claims made by the petitioners. It was also pointed out that the claim of the petitioners now is that, it was the Commandant, who was conducting the litigation and since the earlier Commandant was FAO. 126/2008. 3 transferred, they were unaware of the proceedings and that had caused the delay cannot be accepted. It is contended by the respondents that it was the Assistant Commandant, who was conducting the litigation. 5. For the purpose of the interlocutory application the court below had P.W.1 examined. 6. The court below was unable to accept the evidence of P.W.1 and the contentions put forward by the petitioners and dismissed the petitions. The said order is assailed in this appeal. 7. It is seen from the records that even though the petitions to set aside the ex-parte decree and also to condone the delay were filed by the Commandant, he had not gone into the box. Instead the P.T.A Chairman was examined as P.W.1. It is seen from the records that on several occasions the matter was posted for settlement. On all the occasions the petitioners before the court below had defaulted in attempting to arrive at a settlement. There were several opportunities and they failed to utilise any of them. FAO. 126/2008. 4 It is evident that P.W.1 had no direct knowledge about what had transpired and one fails to understand as to how he was competent to speak with regard to the affidavit sworn to by the Commandant. The court below has therefore came to conclusion that there was no bonafides in the claim of the petitioners and the allegations are not true. It was also found that sufficient opportunity was given to the petitioners, and they had failed to utilise the same. The court below came to the conclusion that the default was wilful. 8. On going through the order, it is seen that the court below has considered all the aspects and found that the affidavit sworn to by the Commandant does not contain true facts. It is also seen that the person, who was examined was another person, who had no direct knowledge about the matters spoken to in the affidavit. It is also seen that the defendants, who had obtained several adjournments to settle the matter had later lost interest in the matter. Considering the above facts, the court below came to the conclusion that there was no bonafides in the application. No FAO. 126/2008. 5 grounds are made out to interfere with the order impugned in this appeal. The appeal is devoid of merits and it is accordingly dismissed. There will be no order as to costs. P.R. Raman, Judge P. Bhavadasan, Judge sb.