Insufficient time for appearance of parties and improper service of summons are sufficient grounds to set aside an exparte decree.

Balakrishnan, J.

This is an appeal preferred by defendants in O.S. No. 425/89 against the order in I. A. Nos. 6654 and 6655 of 1989.

2. The respondent-plaintiff had entered into a contract with the first defendant State of Kerala for repair works of a public road. The contract amount was Rs. 62,295/ - and the time stipulated for completion of contract was 10.12.1986. Plaintiff commenced his work on 15.4.87 and completed on 15.7.87. He alleges that defendants had requested for certain deviations from the original contract but no sanction was accorded for the new estimate. The plaintiff alleged that he had suffered damage to the extent of Rs. 1,36,395/- and he filed the suit for realisation of this amount. The first appearance was on 16.10.89 and on that day defendants were not present and they were set exparte and the plaintiff was asked to file an affidavit and on 30.10.89 plaintiff filed an affidavit and on 31.10.89 the suit was decreed as prayed for.

3. The defendants filed an application to set aside the exparte decree. The defendants had also filed an application to condone the delay in filing the application as there was delay of 56 days. Both these applications were allowed on 19.11.92 and the exparte order was set aside on condition that the defendants would pay an amount of Rs. 250/- as cost.

4. This order was challenged by the plaintiff in C. R. P. No.859/93. It was contended that the affidavit filed in support of the two applications filed by the defendants were sworn to by the then executive engineer and that the plaintiff did not get opportunity to cross examine the person who had sworn to such an affidavit. The matter was remanded to court below for fresh consideration.

5. Thereafter, the matter was reconsidered by the court below and the impugned order was passed by the learned Sub Judge. The learned Sub-Judge declined to set aside the exparte decree on the ground that defendants failed to show sufficient cause for non- appearance. This is challenged by the defendants in appeal.

6. The specific contention raised by these defendants was that, on receipt of the summons issued from the Court on 7.10.89 they informed the District Government Pleader to make arrangements to enter appearance and get adjournment for filing the written statement. It is also contended that on 17.10.89 another request was made to the Government Pleader to do the necessary in the suit. The draft written statement was sent to the Government Pleader on 31.10.89. Two witnesses were examined in support of this contentions.

7. PW-1 is an Executive Engineer. He deposed that on 16.10.89, the case was posted and on that day he sought for an adjournment and the matter was informed to the Additional Government Pleader and that the statement of facts were sent to him on 31.10.89. He did not receive any communication and on 7.12.89, the matter was enquired to by an Assistant Engineer and then only he came to know that the suit was already decreed on 31.10.89. After the remand P.W. 2 was examined on 8.10.94. It was PW-2 who sworn to the affidavits filed in support of the application to set aside the exparte decree. The defendants could not examine him and in the C. R. P. 859/93, the learned Single Judge of this Court observed that the plaintiff may be given an opportunity to cross examine the person who had sworn to the affidavit in support of the petition. P. W.2 had met with an accident and he could not be present in Court and therefore he was examined on Commission.

8. P. W.2 deposed that after having received the summons in the case, his predecessor in office had taken urgent steps and on 7.10.1989 itself communication was sent to the office of the Government Pleader and on 17.10.89 another request was sent to the office of the Government Pleader to inform the hearing date of the suit, and on 31.10.89 a draft written statement was sent to the office of the Government Pleader. This evidence was given only to show that urgent and possible steps wer