Partly allowed

K.v.Siddique, v. M.M.Manzoor

Kerala HC18 Feb 2019FAO/14/2019

Case brief

AI extract

What is this about?

The High Court set aside the Sub Court's order dismissing petitions to set aside an ex-parte decree and condone delay. The Court awarded the appellant an opportunity to defend the suit on merits upon payment of legal services fees and compliance within specified timelines.

What did the court decide?

Impugned common order set aside on payment of Rs. 5,000/- to Legal Services Authority and production of receipt. Sub Court to dispose of suit within five months.

K.v.Siddique, Vs M.M.Manzoor — Execution and Attachment | Kerala HC (2019)

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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 K.HARILAL

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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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MONDAY, THE 18TH DAY OF FEBRUARY 2019 / 29TH MAGHA, 1940

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FAO.No. 14 of 2019

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AGAINST THE COMMON ORDER IN I.A.1863 and 1864 of 2017 IN OS 192/2013 of SUB COURT, OTTAPPALAM

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APPELLANT/PETITIONER/DEFENDANT:

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K.V.SIDDIQUE, AGED 61 YEARS S/O.KUNHIPPA, KARUPPAN VEETTIL, KARIMBA, MANNARKKAD, PALAKKAD.

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BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL)

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RESPONDENT/RESPONDENT/PLAINTIFF:

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M.M.MANZOOR,

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AGED 48 YEARS, S/O.T.A.MUHAMMED BAVA, VARANMEL HOUSE, PALLURUTHI, EDAKOCHI, ERNAKULAM-682010.

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 18.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

Fao14/2019

JUDGMENT

K.Harilal, J.

1. The appellant is the defendant against

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whom an ex-parte decree has been passed in OS 192/2013 of the Sub court, Ottappalam.

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Aggrieved by the ex-parte decree, he has filed IA Nos.1863 and 1864/2017 under Order 9 Rule 13 of the Code of Civil Procedure, to set aside the ex-parte decree along with IA 1863/2017 to condone the delay of 16 days in filing IA 1864/2017. After considering both the applications together, the Sub Court dismissed both the applications by the impugned common order, on a finding that there is no satisfactory reason, to condone

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the delay in filing the petition or for the

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non-appearance of the appellant when the

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case was called on for trial or for not filing the written statement till the disposal of the suit. The legality and correctness of the aforesaid finding are assailed in this appeal.

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2. Heard the learned counsel for the

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appellant.

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3. Going by the impugned judgment, we understand that though the suit was filed on 25.10.2013, the appellant did not file the written statement till 8.8.2014, the day on which the suit was rejected for non-payment of court fee. Though the suit was restored on 15.3.2017, he did not file written statement till the suit was decreed ex-parte on 8.11.2018. Moreover, when the case was

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listed and called on for trial, he was not

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present before court and the counsel

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reported 'no instructions'. According to the appellant, he was out of station in connection with his business. There is no specific averments disclosing the cause of delay and no evidence had been adduced to prove the reason for not filing the written statement or the delay in filing the petition to set aside the ex-parte decree.

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4. In the above view, we do not find fault with the court below in dismissing the petition to condone the delay and the petition to set aside the ex-parte decree by the impugned common order.

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5. But, we are inclined to take a different

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view in a different perspective. Adjudication of a lis on merits is always desirable than dismissal on technicality.

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When cause of substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred rather than technicality. In the above view, we are of the opinion that the appellant can be given an opportunity to defend the suit on merits, on terms and we do so.

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6. Consequently, the impugned common order would stand set aside, on payment of Rs.5,000/- to the Legal Services Authority, Ottapalam and production of receipt thereof before the Sub Court, Ottapalam, within a period of one month from the date of receipt of a copy of this judgment. Needless to say, in the event of failure, the impugned order would remain in force. On compliance, both the applications would stand allowed

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and the Sub Court shall dispose of the suit at the earliest, at any rate, within a period of five months from the date of restoration of the suit.

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7. The FAO is disposed of accordingly.

Sd/-

K.HARILAL

JUDGE

Sd/-

ANNIE JOHN

JUDGE

sl.

K.v.Siddique, v. M.M.Manzoor

Case brief

What is this about?

What did the court decide?

K.v.Siddique, v. M.M.Manzoor

Case brief

What is this about?

What did the court decide?

What the court decided

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