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2004 DIGILAW 378 (KER)

Aiswarya Cashew Co v. Krimpexx Overseas (P) Ltd.

2004-08-12

K.PADMANABHAN NAIR

body2004
Judgment :- K. Padmanabhan Nair, J. The respondent appears and as agreed to by both sides, this Writ Petition itself is heard. 2. The petitioner is the first defendant in O.S.82 of 2002 on the file of the Additional Sub Court, Kollam, a suit for money, filed by the first respondent. The suit was posted for trial on 13.2.2003 and then adjourned to 25.2.2003. On 25.2.2003 the parties were directed to file proof affidavit and the case was adjourned to 10.3.2003. On 10.3.2003 the defendants did not appear and contest. Hence the defendants were set ex parte and ex parte decree was passed. On the very same day the petitioner filed an application under O.IX, R.I 3 to set aside the ex parte decree. It was averred that the petitioner was physically present in the Court at the time of roll call and the case was called and kept aside; but subsequently when the case was called, the petitioner did not hear the number and hence he was set ex parte. The first respondent-plaintiff filed an objection contenting that the reasons stated in the affidavit are false and the Writ petitioner was not present in the Court. The Court below considered this aspect.and set aside the ex parte order passed against the petitioner. But, the Court below directed the petitioner to pay a cost of Rs.10,000/- to the plaintiff within two weeks. According to the Court below, considering the quantum of the claim made in the plaint, a cost of Rs.10,000/- can be ordered to be paid. 3. The learned counsel for the parties admits that the suit claim is Rs.23,40,244/- with future interest. The view taken by the learned Sub Judge is not correct. It is not the quantum of amount that is to be considered. The question to be considered is whether there was any wilful default on the party in not appearing when the case was taken up for hearing. The petitioner was set ex parte on 10.3.2003. On the very same day the petition was filed. A petition can be filed in Court before 3.00 p.m., which indicates that the petitioner was physically present in the Court on that day. So, I am of the view that there is no justification in awarding a cost of Rs.10,000/- merely because the plaint claim is more than Rs.23 lakhs. On the very same day the petition was filed. A petition can be filed in Court before 3.00 p.m., which indicates that the petitioner was physically present in the Court on that day. So, I am of the view that there is no justification in awarding a cost of Rs.10,000/- merely because the plaint claim is more than Rs.23 lakhs. I am of the view that a cost of Rs.2,000/- is just and reasonable in the facts and circumstances of the case. So, the order of the Court below awarding a cost of Rs.10,000/- is to be modified and reduced to Rs.2,000/-. In the result, the Writ Petition is allowed in part. The finding of the Court below that the ex parte decree is liable to be set aside is confirmed. But, the condition imposed for setting aside the ex pane decree that the petitioner shall pay cost of Rs. 10,000/- is modified and reduced to an amount of Rs.2,000/- (Rupees two thousand only). The exparte decree will stand set aside, provided the petitioner pays or deposits in the Court below for payment to the first respondent-plaintiff an amount of Rs. 2,000/-(Rupees two thousand only) within two weeks from today. In case the condition is complied with, the Court below shall give an opportunity to the petitioner to contest the matter on merits. There will be a further direction to the Court below to dispose of the suit as expeditiously as possible, at any rate within four months from the date of receipt of a copy of this judgment.