Allowed

George Mathew v. M.R.Vijayan

Kerala HC12 Oct 2017FAO/159/2017

Case brief

AI extract

What is this about?

The High Court of Kerala allowed an appeal against the dismissal of an application to set aside an ex-parte decree. The Court set aside the lower court order and reinstated the applications due to evidence of pending settlement talks, directing the lower court to complete the trial within six months.

What did the court decide?

Appeal allowed; impugned order set aside; applications for condonation of delay and setting aside ex-parte decree allowed; trial to be completed within six months.

George Mathew Vs M.R.Vijayan — Civil Procedure and Limitation | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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THURSDAY, THE 12TH DAY OF OCTOBER 2017/20TH ASWINA, 1939

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FAO.No. 159 of 2017 ()

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I.A.NOS.3723 AND 3724 OF 2016 IN OS NO.404/2013 DDT.25.1.2017 OF THE III ADDITIONAL SUB COURT, ERNAKULAM

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APPELLANT(S)/PETITIONER-2ND DEFENDANT:

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GEORGE MATHEW

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S/O.V.M.MATHEW, FLAT NO.10 F, PANJOS GARDENS, PADIVATTOM, EDAPALLY P.O., ERNAKULAM, KOCHI-682024.

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BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SRI.M.F.MOHAMMOD SIYAD SMT.ACHU SUBHA ABRAHAM

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RESPONDENT(S)/RESPONDENT-PLAINTIFF AND 1ST DEFENDANT:

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M.R.VIJAYAN

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S/O.RAGHAVAN, "TRIPADAM', NEAR FATHIMA MATA CHURCH, CHANGAMPUZHA NAGAR P.O., KOCHI-682033.

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MAREENA GEORGE

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W/O.GEORGE MATHEW, FLAT NO.10 F, PANJOS GARDENS, PADIVATTOM, EDAPALLY P.O., KOCHI-682024.

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R1 BY K.R.VINOD

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THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 12-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.N. Ravindran & Devan Ramachandran, JJ.

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- - - - - - - - - - - - - - - - - - - - - -- - - F.A.O.No.159 of 2017

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- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 12^th October, 2017

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JUDGMENT

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Devan Ramachandran, J.

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We heard Sri Philip T.Varghese, learned counsel appearing for the appellant and Sri K.R.Vinod, learned counsel appearing for the respondent.

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With the consent of parties as voiced through their learned counsel, we propose to dispose of this appeal at the stage of admission.

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This appeal has been filed impugning the order of the III Additional Sub Court, Ernakulam in I.A.Nos.3723 and 3724 of 2016 in O.S.No.404 of 2013 filed by the respondent herein. The pleadings on record would show that the suit was decreed ex-parte on 20.12.2014 and that the second defendant/appellant herein had filed the above mentioned applications seeking to set aside the ex-parte decree and for condonation of the delay of 575 days in filing the former application, respectively. The court below, on a consideration of the said applications, however, found that the appellant had not led any cogent evidence in support of the explanation offered as regards his

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FAO 159/2017 2

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non appearance on the date when the suit was listed for trial and further that there is no convincing explanation from him in not approaching the court below to set aside the ex-parte decree within the period of limitation. The court below thus dismissed the applications, against which this appeal is filed.

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When this matter was heard today, Sri K.R.Vinod, learned counsel for the respondent conceded before us that there were settlement talks between the parties even pending the suit before the court below. He says that, in fact, some amounts have actually been paid by the defendants and he indicates that the amount paid is to the extent of about Rs.15,00,000/-. According to him, had the appellant herein been paid the whole amount as per the settlement within a reasonable time, he need not have even filed this appeal. The submissions at the Bar would guide us to believe that the parties have actually attempted to settle the matter by holding mediation talks, but they were not in a position to completely settle the account due to paucity of finance with the appellant herein. That being the situation, we are of the view that even though the court below was technically right in dismissing the application, the appellant ought to have been offered some lenience and latitude. We deem this so as to ensure substantial justice and complete equity is obtained to the parties.

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FAO 159/2017

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There is no doubt that there was laxity on the part of the appellant in prosecuting the proceedings and he has not offered any convincing reason for not filing an application to set aside the ex-parte decree within time. Be that as it may, since we notice that settlement talks were held and that it had nearly fructified even before the exparte decree was passed, we deem it appropriate to set aside the order of the court below impugned in this appeal so as to pave way for the trial of the suit in terms of law. Since, as we have already indicated above, the parties appear to have already ventured into some kind of settlement, it would be open to them to pursue such settlement before the court below also. The court below shall endeavour to complete the trial of the suit within a reasonable time, and we are of the view that a period of about six months would be sufficient for this.

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In such circumstances, we allow the appeal setting aside the impugned order, consequently allowing I.A.Nos.3723 and 3724 of 2017 in O.S.No.404 of 2013 on the file of the III Additional Sub Court, Ernakulam, thus setting aside the ex-parte decree dated 20.12.2014 passed in the said suit. We direct the court below to complete the trial of the suit and to pass a fresh judgment and decree as expeditiously as possible, but not later than the last working day for the Subordinate

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FAO 159/2017 4

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Courts before it closes for summer recess of 2018.

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The parties are directed to appear before the court below on

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1.11.2017 without fail.

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(P.N. Ravindran, Judge)

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(Devan Ramachandran, Judge)

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kav/

George Mathew v. M.R.Vijayan

Case brief

What is this about?

What did the court decide?

George Mathew v. M.R.Vijayan

Case brief

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