Kerala High Court
Ummer vs Chandran on 14 November, 2024
Author: Sathish Ninan
Bench: Sathish Ninan
FAO No.116/2024 1
2024:KER:85137
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
THURSDAY, THE 14TH DAY OF NOVEMBER 2024 / 23RD KARTHIKA, 1946
FAO NO. 116 OF 2024
AGAINST THE ORDER/JUDGMENT in RESTORATION IA 16/2024 & IA
3/2024 DATED 18.07.2024 IN OS NO.258 OF 2013 OF SUB COURT,
CHAVAKKAD
APPELLANT/PETITIONER/DEFENDANT:
UMMER
AGED 57 YEARS
S/O KOLADYPADAM PANDANTHARAVEETTIL KAMMU RAVUTHAR,
PORKULAM VILLAGE, PORKULAM DESOM, TALAPPILLY TALUK,
THRISSUR, PIN - 680542
BY ADV V.A.VINOD
RESPONDENT/RESPONDENT/PLAINTIFF:
CHANDRAN
AGED 58 YEARS
S/O PARATHIVALAPPIL APPUKUTTAN, CHEMMANNUR DESOM,
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PUNNAYURKULAM VILLAGE, CHAVAKKAD TALUK, THRISSUR, PIN -
679561
BY ADVS.
RAJIT
SRUTHI RAJIT(K/004457/2024)
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON
12.11.2024, THE COURT ON 14/11/2024 DELIVERED THE FOLLOWING:
FAO No.116/2024 3
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SATHISH NINAN,
&
P.V.BALAKRISHNAN,JJ.
-------------------------------------
FAO. No. 116 of 2024
---------------------------------
Dated this the 14th day of November 2024
JUDGMENT
P.V.BALAKRISHNAN,J
This appeal is filed by the petitioner in Restoration I.A.No.16/2024
and I.A. No.3/2024 in O.S.No. 258/2013, aggrieved by the common
order passed therein dismissing these petitions by the Sub Court,
Chavakkad.
2. Restoration I.A.No.16/2024 is a petition filed under Order 9 Rule
13 CPC and I.A.No.3/2024 is an application to condone the delay of 91
days in filing the said petition.
3. The case of the appellant is that when the suit was listed for trial
on 6/12/2023, a warrant was pending against him, issued by the JFCM
Court, Chavakkad. Hence, he could not appear in this case resulting in
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passing an ex parte decree against him. Subsequently, the appellant
appeared before the Magistrate Court on 6/1/2024 and obtained bail.
Thereafter, he left for Mumbai and came back and filed these
applications and hence the delay occurred.
4. The respondent contended that the version of the appellant that
he was in Mumbai is not correct, since he had appeared before the JFCM,
Chavakkad on 28/2/2024. It is contended that on an earlier occasion
also the appellant was set ex parte and an ex parte decree was passed
against him and later the same was set aside, after condoning the delay
of 822 days by the High Court, on terms.
5. Heard the learned Counsel for the appellant and the
respondent.
6.The records go to show that the suit was listed to 6/12/2023 on
26/7/2023 and that the appellant has failed to appear before the court
on that day and the subsequent days resulting in passing of an ex
parte decree against him. It also shows that the present application
has been filed by the appellant under Order 9 Rule 13 CPC with a delay
of 91 days. The reason stated by the appellant for his non appearance
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on 6/12/2023 and the subsequent postings is that a warrant was
pending against him, issued by the JFCM, Chavakkad. It is also stated by
the appellant that after obtaining bail on 6/1/2024, he had gone to
Mumbai and hence, the delay had occurred in filing the petition to set
aside the ex parte decree. But at the outset itself, we may say that the
reasons stated by the appellant are not at all impressive. The appellant,
even though was fully aware about the listing of the case as early as on
July 2023, has not taken any steps to appear before the learned
Magistrate and obtain bail. Further, even after obtaining bail, the
appellant has not filed the petition to set aside the ex parte decree within
a reasonable time and petitions were filed only on 12/4/2024 and the
reasons stated for the same, lacks bona fide. At this juncture we take
note of the fact that on an earlier occasion also the suit was decreed ex
parte and the same came to be set aside after condoning a delay of 822
days by this court, on terms. The afore facts unerringly shows that
there are laches on the part of the appellant in prosecuting the suit.
7. Even if the matter stands thus, considering the stakes involved
in the matter and the fact that the law always favour the disposal of a
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case on merits, we are inclined to grant another opportunity to the
appellant to contest the suit, of course subject to terms to alleviate the
hardship caused to the respondent. We are thus of the view that this
appeal can be allowed, on condition that the appellant pays as cost,
Rs.7,500/- to the counsel appearing for the respondent before this
Court within a period of three weeks from today.
In the result, this appeal is allowed in part as follows;
i) The common order dated 18/7/2024 in Restoration I.A
No.16/2024 and I.A. No.3/2024 in O.S.No.258/2013 passed by the Sub
Court, Chavakkad is set aside and Restoration I.A.No.16 /2024 and I.A.
No.3/2024 are allowed on condition that the appellant pays, as cost
Rs.7,500/- to the counsel appearing for the respondent before this
Court within a period of three weeks from today.
ii). Both sides are directed to appear before the trial court on
16/12/2024.
iii). In case the cost is not paid, the appellant will not be entitled to
the benefit of this judgment and the appeal will stand dismissed
affirming the impugned orders.
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iv) The trial Court is directed to list the suit in the month of
January and make every endeavour to dispose it of on or before
15/2/2025.
Sd/-
SATHISH NINAN
Judge
Sd/-
P.V.BALAKRISHNAN
Judge
dpk
