VELAYUDHAN vs C.SURESH

This appeal is filed challenging the common order passed by the Subordinate Judge's Court, Palakkad in the applications filed for setting aside the ex-parte decree in O.S.No.205 of 2010 and for condoning the delay in filing that application.

After several adjournments the suit had come up for trial before the lower court on 3.7.2016. Since 3.7.2016 was a holiday, the suit was adjourned for trial to 4.7.2016. On that day the counsel for the defendant reported no instructions and consequently the defendant was set ex-parte by the lower court. On 7.7.2016 an ex-parte decree against him was passed granting a decree for specific performance.

Thereafter, on 14.2.2017 the defendant filed an application as I.A.No.569 of 2017 for setting aside the ex-parte decree against him and also another application as I.A.No.568 of 2017 for condoning the delay of 222 days in filing the application I.A.No.569 of 2017. The defendant had contended before the lower court that he was under treatment and therefore he could not appear before the lower court on the date of hearing of the suit. The plaintiff had filed objection to the  applications disputing the correctness of the contentions raised by the defendant.

The defendant was examined as PW1 and Ext.A1 was marked during the hearing of the aforesaid applications. After considering the rival contentions of the parties and considering the evidence of PW1 and also Ext.A1 records relating to the treatment of the defendant, the lower court found that the averments in the affidavit filed along with the applications were not true and that the defendant was only making an attempt to protract the proceedings and therefore dismissed both the applications. This order is challenged in this appeal.

We have heard learned counsel appearing for the appellant and also the respondent.

On a perusal of the impugned order passed by the lower court, it is seen that even on earlier occasions, the defendant had made applications for adjournment of the trial of the suit and the applications had been allowed by the trial court. However, considering the fact that the appellant/defendant was under treatment for paralysis, we feel that one more opportunity can be granted to him to contest the suit but only on payment of costs to the respondent/plaintiff. Considering the totality of the circumstances, we find that it would be reasonable to direct the appellant to deposit/pay an amount of Rs.7,500/- as a condition for setting aside the ex-parte decree in the suit. The appeal is liable to be allowed on these terms.

In the result, we allow the appeal and set aside the impugned order passed by the lower court. The applications for setting aside the ex-parte decree and for condoning the delay in filing the application to set aside the ex-parte decree filed by the appellant/defendant shall stand allowed on depositing in this court an amount of Rs.7,500/-

(Rupees Seven thousand and five hundred only) as costs payable to the respondent/plaintiff on or before 5.1.2018. The appellant/defendant is at liberty to pay the amount of costs to the counsel for the respondent/plaintiff instead of depositing the amount.

On production of the memo regarding receipt of the amount of costs, the lower court shall restore the suit to file and try and dispose of it on or before the date on which the civil courts close for the summer vacation of 2018. The respondent/plaintiff is allowed to withdraw the balance amount of consideration, if any, deposited by him in the court below on restoration of the suit to file.