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Judgment
Sathish Ninan, J.
The appeal is filed challenging the disposal of the application seeking to set aside the exparte decree and to condone the delay.
I have heard the learned counsel on either sides.
The exparte decree was passed in the suit on 29/11/2016. Application was filed to set aside exparte decree and to condone the delay of 74 days. The reason stated was that, the counsel who was appearing for the petitioner was laid up due to illness and subsequently passed away. The petitioner was not posted with regard to the proceedings, consequent to which written statement was not filed. As soon as the petitioner got information with regard to the decree, the applications were filed, is the reason stated.
The trial court noticed that, no explanation was offered by the petitioner for not making enquiries with the counsel as to the status of the suit and accordingly, the court refused to condone the delay and the applications were also dismissed.
The fact that the counsel who was appearing for the petitioner fell ill and passed away is not disputed. Though the Court is right in noticing that the defendant has failed to file a written statement within the time stipulated under the Code of Civil Procedure, in the circumstances as noticed above, I am of the opinion that the petitioner could be granted an opportunity to file written statement and have the suit tried and disposed of on contest rather than a decree on default.
Resultantly, the appeal is allowed. The order impugned is set aside. The applications I.A.Nos.935/2017 and 936/2017 in O.S.No.773/2011 of the Sub Court, Palakkad will stand allowed. The exparte decree will stand set aside. The appellant - 1st defendant is granted time till 30/11/2023 for filing the written statement. If written statement is filed within the said time, the same shall be accepted on file and the suit tried and disposed of on the merits. Every endeavor shall be made to have the suit tried and disposed of within a period of three months therefrom. If the appellant fails to file the written statement on or before 30/11/2023, the appeal will stand dismissed affirming the order impugned.
Parties to appear before the trial court on 17/11/2023.