Kerala High Court
Ronymol Louis vs Win George on 15 February, 2024
Author: Anil K. Narendran
Bench: Anil K. Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR.JUSTICE G. GIRISH
THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945
FAO NO. 176 OF 2018
AGAINST THE COMMON ORDER IN I.A.NO.1366/2016 AND
I.A.NO.1367/2016 IN OS NO.102/2008 DATED 10.07.2018 OF
PRINCIPAL SUB COURT, KOTTAYAM
APPELLANT/PETITIONER/DEFENDANT:
RONYMOL LOUIS, D/O. LOUIS, MUKALEL HOUSE,
PADINJARUM BHAGOM KARA, ATHIRAMPUZHA VILLAGE,
KOTTAYAM TALUK, PIN 686562, REPRESENTED BY HER
POWER OF ATTORNEY HOLDER MOLY LOUIS
BY ADVS. C.R.SYAMKUMAR
P.A.MOHAMMED SHAH
K.ARJUN VENUGOPAL
V.A.HARITHA
SIDHARTH B PRASAD
R.NANDAGOPAL
GAYATHRI MURALEEDHARAN
RESPONDENT/RESPONDENT/PLAINTIFF:
WIN GEORGE S/O. VARKEY, THAIPARAMBIL HOUSE, MANNANAM
KARA, PAROLICKAL, ATHIRAMPUZHA VILLAGE, KOTTAYAM
TALUK, KOTTAYAM DISTRICT, PIN - 686562
BY ADVS. N. RAGHURAJ
SAYUJYA(K/687-E/2014)
VIVEK MENON(K/001227/2022)
RANCE R.(K/1560/2021)
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL
HEARING ON 24.01.2024, THE COURT ON 15.02.2024 DELIVERED THE
FOLLOWING:
2
F.A.O.No.176 of 2018
JUDGMENT
G. Girish, J.
The appellant is the defendant in O.S.No.102 of 2008 of the
Principal Sub Court, Kottayam, against whom an ex parte money
decree was passed by the said court on 06.02.2012. He filed
I.A.No.1367 of 2016 to set aside the above ex parte decree and
I.A.No.1366 of 2016, for the condonation of delay of 1688 days in
filing the former petition under Order IX Rule 13 of the Code of Civil
Procedure. Both the above applications were dismissed by the
Principal Sub Court, Kottayam as per common order dated
10.07.2018. This F.A.O is filed against the above common order of
the Principal Sub Judge, Kottayam.
2. Earlier, as per judgment dated 22.10.2018, this Court had
allowed the F.A.O and reversed the orders passed by the Principal
Sub Court, Kottayam in I.A.Nos.1366 of 2016 and 1367 of 2016,
subject to conditions. However, the respondent herein filed
I.A.No.02 of 2018 under Order XLI Rule 21 of the Code of Civil
Procedure to rehear the F.A.O stating the reason that his counsel
could not argue the case since the cause list published on
22.10.2018 did not contain the name of the counsel, and hence the
counsel was unaware of the posting of the case on 22.10.2018. The
above application filed by the respondent, was allowed by this Court
as per order dated 08.03.2019, and accordingly the F.A.O was
re-opened.
3. Heard the learned counsel for the appellant and the
learned counsel for the respondent.
4. The short question that arises for consideration is
whether the court below is justified in finding that the appellant has
failed to prove sufficient cause for the delay of 1688 days in filing
I.A.No.1367 of 2016 to set aside the ex parte decree passed against
him in O.S.No.102 of 2008, and whether there was sufficient cause
for the non-appearance of the appellant, when the above suit was
posted for trial.
5. It could be seen from the impugned judgment that the
suit was earlier decreed ex parte on 22.08.2008, and later, it was
set aside. The respondent had proceeded with the Execution Petition,
wherein the appellant produced Fixed Deposit receipts for
Rs.9,00,000/- as security. Though the appellant later on filed
petition for withdrawal of the above Fixed Deposit receipts, stating
that the ex parte decree was set aside, the respondent had filed
objection in December, 2016, stating that the suit was again decreed
ex parte on 06.02.2012. The learned counsel for the appellant
submitted that the above Fixed Deposit receipts produced by the
appellant as security in the execution proceedings initiated by the
respondent, are still available, and that the appellant is ready to
deposit the balance amount due to respondent, as on today, as per
the above ex parte decree dated 22.08.2008.
6. Having regard to the above submission of the learned
counsel for the appellant, it cannot be said that the delay was caused
intentionally to defeat the execution of the decree. So long as the
Fixed Deposit receipts are being kept in Execution Court, no kind of
mala fides could be attributed to the appellant in causing the delay
in filing petition to set aside the ex parte decree. So also, there is no
need to view with suspicion the reason stated by the appellant for
his non-appearance on the date of trial, as the communication gap
with his counsel. Further, we are of the opinion that, in the facts and
circumstances of the case, as stated aforesaid, the adjudication of
the lis on merits, is always desirable than dismissal on technicality.
When cause of substantial justice and technical considerations are
pitted against each other, in cases where the absence of the parties
concerned was neither deliberate nor due to any laxity, substantial
justice deserves to be preferred, rather than technicality. Therefore,
the appellant can be given an opportunity to contest the suit on
merits, but of course, subject to strict conditions towards ensuring
an expeditious disposal of the case, and also for making available
security deposit, as offered by the learned counsel for the appellant,
for the payment of decree debt, in case the plaintiff succeeds in the
suit.
In the result, the appeal stands allowed as follows:
(i) The impugned common order of the Principal Sub
Court, Kottayam in I.A.Nos.1366 of 2016 and 1367
of 2016 in O.S.No.102 of 2008 is set aside and
reversed subject to production of receipt of fixed
deposit, before the court below by the appellant, for
the entire decree amount due as on today as per the
terms of the ex parte decree dated 06.02.2012,
within a period of three weeks from today.
(ii) It is made clear that if the fixed deposit receipt of any
earlier deposit made by the appellant in accordance
with the directions of this Court or the Sub Court, is
already available before the said court, the appellant
need produce only the receipt of fixed deposit for the
balance amount which he is liable to deposit as per
the above direction.
(iii) The ex parte decree passed by the Principal Sub
Court, Kottayam in O.S.No.102 of 2018 on
06.02.2012 is set aside, and the suit is restored to
files, subject to compliance with the aforesaid
directions.
(iv) The parties are directed to appear before the Principal
Sub Court, Kottayam on 04.03.2024 for enabling the
said court to proceed with the suit.
(v) The learned Principal Sub Judge, Kottayam, upon
being convinced about the compliance of the
directions aforesaid by the appellant, shall give
sufficient opportunity to both parties to adduce
evidence, and dispose of the suit afresh as
expeditiously as possible, at any rate, within a period
of three months from the date of receipt of a copy of
this judgment.
(vi) Registry shall forward the lower court records and a
copy of this judgment to the court below
immediately.
(sd/-)
ANIL K. NARENDRAN, JUDGE
(sd/-)
G. GIRISH, JUDGE
jsr
