Kerala High Court
Prince vs Biju on 10 October, 2024
Author: Sathish Ninan
Bench: Sathish Ninan
2024:KER:75664
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946
FAO NO. 85 OF 2024
AGAINST THE ORDER DATED 02.11.2022 IN I.A.NO.1 OF 2020 IN
OS NO.82 OF 2019 OF ADDITIONAL SUB COURT, IRINJALAKUDA
APPELLANT/PETITIONER/DEFENDANT:
PRINCE
AGED 38 YEARS
S/O. KUNNEL LATE BABY, KALKUZHYDESOM, MUPLIYAM
VILLAGE, CHALAKUDY TALUK., PIN - 680312
BY ADVS.
ELDHO VARGHESE
K.SURESH BABU
2024:KER:75664
F.A.O.No.85 of 2024
-: 2 :-
RESPONDENT/RESPONDENT/PLAINTIFF:
BIJU
AGED 48 YEARS
S/O. MANJALY JACOB, VARANDARAPPILLY VILLAGE,
CHALAKUDY TALUK., PIN - 680303
BY ADVS.
MAHESH V MENON
RAJITHA V.K(K/1199/2020)
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR
HEARING ON 10.10.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2024:KER:75664
SATHISH NINAN & JOHNSON JOHN, JJ.
= = = = = = = = = = = = = = = = = =
F.A.O. No.85 of 2024
= = = = = = = = = = = = = = = = = =
Dated this the 10th day of October, 2024
JUDGMENT
Sathish Ninan, J.
The application to set aside the ex parte order was
dismissed by the trial court for the reason that, the
suit was already decreed ex parte. The same is under
challenge in this appeal by the defendant.
2. The suit is one for realisation of money. The
defendant, though originally appeared in the suit,
remained ex parte thereafter. He did not file written
statement. On 24.08.2019, he was set ex parte.
Thereafter, an ex parte decree was passed by the Court
on 28.02.2020. The defendant had filed an application as
I.A.No.1 of 2020, seeking to set aside the ex parte
2024:KER:75664
order dated 24.08.2019. When the application came up for
consideration before the Court, since the suit was
already decreed, the application was dismissed.
3. We have heard the learned counsel on either
side.
4. We had called for a report from the trial
court regarding the date on which the application to set
aside the ex parte order was filed. Going by the report,
the application was filed on 27.02.2020. As noticed
earlier, the decree was passed on 28.02.2020. The
defendant had not filed the written statement and there
was no representation for him on various posting dates,
which led to the ex parte order and the ex parte decree.
5. Though it appears that the application,
seeking to set aside the ex parte order was filed on
27.02.2020, by that time, the suit was already taken up
for final judgment. There are no materials to indicate
2024:KER:75664
that the filing of such an application was brought to
the notice of the Court and that the defendant had
sought an urgent consideration of the same. This led to
the passing of the ex parte decree on 28.02.2020.
Subsequently, when the application was placed before the
Court for consideration, as rightly noticed by the
Court, a decree was already passed.
6. It is seen that a written statement has been
filed by the defendant along with the petition to set
aside the ex parte order. According to the defendant, he
was abroad and hence couldn't contest the suit. The suit
is one for money. The defendant denies the transaction.
It is trite that every endavour shall be made to have
the lis decided on merits rather than the disposal on
default. We are of the opinion that an opportunity could
be granted to the defendant to contest the case on
protecting the interest of the plaintiff also, by
2024:KER:75664
requiring the defendant to secure the decree amount.
Resultantly, this appeal is disposed of as
hereunder:
(i) The defendant shall furnish before the trial
court, Bank Guarantee for the decree amount,
inclusive of interest and cost, within a
period of two months from today.
(ii) On complying with the direction in clause (i)
above, the impugned order and the ex parte
decree dated 28.02.2020, in O.S.No.82 of 2019
of the Court of the Subordinate Judge,
Irinjalakuda will stand set aside. The suit
will stand restored back to file. The written
statement filed by the defendant shall be
accepted on file.
(iii) If the defendant fails to comply with the
direction in clause (i) above, this appeal
2024:KER:75664
will stand dismissed, affirming the impugned
order.
(iv) In the event of the suit being restored, every
endeavour shall be made by the trial court to
have the suit tried and disposed of within a
period of three months after its restoration.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
JOHNSON JOHN
JUDGE
yd
