D. Raju vs D. Ebanesar, M. Devadas and N. Estaer

These appeals are preferred by the appellants who are respectively defendant No. 3 and defendant Nos. 1 and 2 in O.S. 775/07 on the files of the Principal Subordinate Judge''s Court, Thiruvananthapuram impugning the orders passed by that court dismissing the applications filed by them seeking condonation of delay caused in the matter of filing applications for setting aside the ex parte decrees passed against them. In the appeals, they also impugn the orders rejecting applications filed by them for setting aside the ex parte decrees.

Going by the orders passed on the delay condonation petitions, the extent of delay in I.A. 2721/09 filed by the appellant in FAO.28/10 was 101 days and extent of delay in I.A. No. 5719/09 filed by the appellants in FAO.29/10 was 223 days. Even though medical certificate was attached to the application in support of the averments in the affidavit filed by the appellants, the learned Subordinate Judge did not become inclined to place any reliance on the certificate since the physician who issued the certificate was not examined as a witness. The learned Subordinate Judge has given other reasons also for dismissing the applications for condonation of delay. Even though the applications for condonation of delay were dismissed, the learned Subordinate Judge went on to consider the applications for setting aside ex parte decrees also on merits though they could have been rejected without examining the merits.

In these appeals almost identical grounds have been raised assailing the orders passed by the court below and we have heard the submissions of Sri D. Kishore and Sri Liji J. Vadakedom, the learned Counsel for the appellants. All their submissions were very emphatically resisted by Sri J. Harikumar, the learned Counsel for the respondent. Mr. Harikumar would submit that the appellants have miserably failed in convincing the court below of the correctness of the explanation offered by them for their absence on the day the suit was decreed ex parte. Even the extent of delay was not correctly mentioned. According to Mr. Harikumar, the extent of delay in I.A. 2719/09 filed by the appellants in FAO. 28/10 was 198 days and the extent of delay in I.A. 5719/09 filed by the appellants in FAO. 29/10 was 320 days. Ext.B2 vakalath nama was actually filed by the appellant as early as on 03/02/09 and if the medical certificate is true Ext.B2 could not have been filed by them on the day the same was filed.

Not that we do not find any force in the submissions of Sri Harikumar. But, we notice that this is a case where the appellants are having apparently serious contentions to be raised in the suit and were not able to raise those contentions. Thus, the probable issues arising between the parties have not been adjudicated. The policy of law is that all causes should be allowed to be adjudicated on their merits rather than decided on technicalities. We also notice that the parties are close relatives which means that in terms of Order 32A and Section 89 of the Code, even the court has a duty to explore the possibilities of a settlement of dispute between the parties before trial. Taking all these aspects into consideration, we feel that the appellants can be afforded an opportunity to contest the suit on merits, however, only on very strict conditions.

The result of the above discussion will be as follows. The orders impugned in these appeals will stand set aside and the applications for condonation of delay as well as for setting aside the ex parte decrees will stand allowed subject to the following conditions:

a) The appellants will file their respective written statements before the court below on or before 22/03/10.

b) The appellants will together deposit a sum of Rs. 1 lakh before the court below towards the plaint claim on or before 31st March, 2010.

c) The appellants will together pay a sum of Rs. 5,000/- as cost to the respondents either directly or through their advocates appearing in this Court on or before 22/03/10 and produce receipt before the court below.

d) The appellants will together pay a total amount of Rs. 2,500/- to the High Court Legal Services Committee on or before 22/03/10 and produce receipt for the same before the court below.

Upon the appellants complying with all the above conditions only, the present judgment will become operative. Once the court below notices that the present judgment has become operative, the learned Judge will formulate issues for trial at the earliest, and at any rate, before the court closes for mid summer vacation. If any of the conditions mentioned above are not complied with, both the appeals will stand dismissed and the impugned orders will stand confirmed.