Kerala High Court
Krishnan Unni vs Dr.Sunil.J on 5 November, 2024
Author: Sathish Ninan
Bench: Sathish Ninan
FAO No.117 of 2024 1
2024:KER:82239
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
TUESDAY, THE 5TH DAY OF NOVEMBER 2024 / 14TH KARTHIKA, 1946
FAO NO. 117 OF 2024
(AGAINST THE ORDER DATED 26.07.2024 IN RP NO.263 OF
2021 IN OS NO.100 OF 2015 OF ADDITIONAL SUB COURT,KOLLAM)
APPELLANT/PETITIONER/DEFENDANT:
KRISHNAN UNNI
AGED 45 YEARS
S/O.SURESH BABU, RESIDING AT SS MANDIRAM,
PRESIDENT JUNCTION, VADASSERYKONAM P.O,
THIRUVANANTHAPURAM -, PIN - 695143
BY ADVS.
S.ABHILASH
K.SIJU
ANJANA KANNATH
RESPONDENT/RESPONDENT/PLAINTIFF:
DR.SUNIL.J
S/O LATE.JANARDHANAN UNNITHAN, CHAIRMAN, KERALA
ENT RESEARCH FOUNDATION (KERF), THEVALLY P.O,
KOLLAM-, PIN - 691009
BY ADV Jani A
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON
05.11.2024, THE COURT ON 5/11/2024 DELIVERED THE FOLLOWING
FAO No.117 of 2024 2
2024:KER:82239
SATHISH NINAN,
&
P.V.BALAKRISHNAN,JJ.
-------------------------------------
FAO. No. 117 of 2024
---------------------------------
Dated this the 5th day of November 2024
JUDGMENT
P.V.BALAKRISHNAN,J
This appeal is filed by the defendant, aggrieved by the
order passed in R.P.No.263/2021 in O.S. No.100/2015 by the
Additional Sub Court, Kollam, dismissing his application filed
under Order IX Rule 13 of CPC.
2. It is the contention of the appellant that when the suit
was listed for trial, he could not participate in it since he was
quarantined and hence he filed an application to remove the case
from the list. It is also his contention that the trial court
dismissed the application and proceeded with the matter and
decreed the suit ex parte. On the other hand, the contention of
the respondent is that even though opportunities were granted to
the appellant/defendant to cross examine PW1 and adduce
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evidence, he did not choose to avail the same and the decree
passed by the trial court is on merits. Hence according to the
learned counsel for the respondent, the remedy of the appellant
is to file an appeal challenging the decree.
3. Having heard both sides and considering the materials
on record, we find some merit in the contention raised by the
appellant. The records show that on the date when the case
was listed for trial, the defendant had filed an application to
remove the case from the list and that the same was dismissed
and thereafter, the mater was proceeded with. PW1 was not
cross examined. Defendant did not take part in the trial. It is
also to be taken note that the defendant was not present before
the court all these days. If so, we are of the considered view that
the disposal of the suit is not as per Rule 3(a) of Order 17 CPC,
but as per Rule 3(b) of Order 17. Ergo, the finding of the trial
court that the application filed under Order IX Rule 13 will not lie,
is not correct.
4. Coming to RP No.263/2021, we are of the view that even
though the reasons stated by the appellant for seeking
adjournment of the suit is not at all impressive, considering the
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fact that the law always favour the disposal of a case on merits,
and the stakes involved in the matter, we are inclined to grant
another opportunity to the appellant to contest the suit,of course
subject to the terms to alleviate the hardship caused to the
plaintiff. We also take note of the submission of the respondent
that earlier also the suit was decreed ex parte and the decree
was set aside. We are thus of the view that the impugned order
can be set aside and R.P.No.263/2021 in O.S.No.100/2015 can
be allowed on condition that the appellant/defendant pays a cost
Rs.15,000/-(Rupees Fifteen Thousand only) to the counsel
appearing for the respondent before this court within a period of
one month from the date of receipt of a copy of this judgment.
5. In the result, this appeal is disposed of as follows;
i) The order dated 26/7/2024 in R.P.No.263/2021 in O.S.
No.100/2015, passed by the Additional Sub Court, Kollam will
stand set aside and R.P.No.263/2021 will stand allowed on
condition that the appellant/defendant pays, as cost Rs.15,000/-
(Rupees Fifteen Thousand only) to the counsel appearing for the
respondent/plaintiff before this Court, within a period of one
month from the date of receipt of a copy of this judgment.
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ii) In case cost is not paid as ordered above, the appellant
will not be entitled to the benefit of this judgment and the appeal
will stand dismissed.
iii) Both sides shall appear before the trial court on
16/12/2024.
Sd/-
SATHISH NINAN
Judge
Sd/-
P.V.BALAKRISHNAN
Judge
dpk
