U.K. Mohan Raj vs Baby Kakkattil Ghee Varghese

T.R. Ramachandran Nair, J.—The defendant in O.S. No. 359 of 2012 is the appellant and plaintiff is the respondent. Suit is one for specific performance of an oral agreement or in the alternative for realisation of money amounting to Rs. 1,97,47,200/- with 18% interest. An exparte decree was passed on 21.03.2013. The appellant filed I.A. No. 5900 of 2013 for setting aside the exparte decree along with another application, I.A. No. 5899 of 2013 for condoning the delay of 169 days in filing the application for setting aside the exparte decree. Court below has rejected both the I.As., which has led to the filing of the appeal.

We heard the learned counsel on both sides. The learned counsel for the appellant submitted that the appellant has got a very good case on merits and there are ample grounds for condoning the delay also. The learned counsel for the respondent submitted that the delay in filing the application has not been properly explained and therefore the order passed by the court below does not require any interference. In fact, going by para. 5 of the order passed by the court below, the reason projected by the appellant is stated as not proved. The only evidence adduced by the appellant by way of production of medical certificate has not been accepted by the court on the ground that the Doctor, who has issued the certificate, has not been examined. The court below has relied on the decision in L.I.C. of India and Another Vs. Ram Pal Singh Bisen, .

The decree passed by the court below will show that the suit is decreed for realisation of an amount of Rs. 1,97,47,200/- with interest also. We are of the view that in the light of the explanation offered by the appellant, he can be given one more chance to contest the matter on merits.

According to him he had shifted his residence from Kozhikode to Coorg. He was busy with the education of his daughter and the marriage proposal of his son. He could not therefore contact his counsel. It cannot be said that these reasons are totally unsatisfactory. The appellant had offered sufficient explanations and to prove the treatment he has made available a certificate also. The court below should not have taken a decision on a technical view of things, especially in the light of the fact that the stake involved is high. We are of the considered view that the explanations are sufficient to condone the delay. His explanation for non appearance is convincing.

Accordingly, we allow the appeal and set aside the impugned order. I.A. No. 5899/13 and I.A. No. 5900/13 will stand allowed. The appellant will pay Rs. 5,000/- (Rupees Five thousand only) as costs to the respondent within one month from today and a memo will be filed in this Court. The suit will stand restored and the same will be disposed of after affording an adequate opportunity to both sides.