The main legal point established in the judgment is the necessity for parties to appear and adduce evidence in a suit, as emphasized by the provisions of Order XVII Rule 2 and Order XVII Rule 3 of the Code of Civil Procedure.

JUDGMENT :

G. Girish, J

The dismissal of a petition filed under Order IX Rule 13 of the Code of Civil Procedure by the Additional Sub Court, Irinjalakkuda, is under challenge in this appeal filed by the defendant, who suffered a money decree in that suit.

2. O.S.No.18 of 2015, a suit for return of advance amount in an agreement for sale, was decreed by the Additional Sub Court, Irinjalakkuda on 30.03.2022 notwithstanding the fact that the defendant (appellant herein) did not adduce any oral or documentary evidence. According to the appellant, he was incapacitated from appearing before the trial court on 17.03.2022 and 19.03.2022, when the case was posted for defendant’s evidence, since he was hospitalized due to heart ailment. The trial court proceeded with the suit and passed a decree for realization of an amount of Rs.41,77,534/- with further interest, on 30.03.2022, as if the defendant (appellant herein) had contested the suit. A petition filed by the appellant as R.P.I.A.No.40 of 2022 under Order IX Rule 13 of the Code of Civil Procedure, for setting aside the above ex parte decree, was dismissed by the learned Sub Judge, as per the impugned order dated 22.02.2023, holding that the disposal of the suit, as per the judgment dated 30.03.2022, was one on merit, and hence, the application under Order IX Rule 13 of the Code of Civil Procedure, is not maintainable. It is the above order of the learned Sub Judge, which is under challenge in this appeal.

3. Notice of this F.A.O. was duly served on the respondent, who is the plaintiff in O.S.No.18 of 2015 of the Additional Sub Court, Irinjalakkuda. The respondent did not appear before this Court or contest this appeal.

4. Heard the learned counsel for the appellant.

5. The point to be decided in this appeal is whether the impugned order dated 22.02.2023 passed by the Additional Sub Court, Irinjalakkuda in R.P.I.A.No.40 of 2022 in O.S.No.18 of 2015 is liable to be altered, set aside or modified.

6. A perusal of the judgment rendered by the Additional Sub Judge, Irinjalakkuda on 30.03.2022 in O.S.No.18 of 2015 would reveal that, in the said suit the plaintiff and two witnesses were examined as PW1 to PW3 and Ext.A1 marked as document from the part of the plaintiff, before the adjournment of the said case for defendant’s evidence. It is also observed in the impugned order of the learned Additional Sub Judge that all the above three witnesses from the part of the plaintiff were cross-examined by the learned counsel for the defendant (appellant herein). It is thereafter, that the appellant failed to appear before the trial court on the posting dates for defendant’s evidence, prompting the learned Additional Sub Judge to proceed with the suit and render the judgment, as if it is a contested one. It seems that the observation of the trial Judge in paragraph No.8 of the judgment dated 30.03.2022 in O.S.No.18 of 2015 as “Heard both sides”, was the reason why the successor Additional Sub Judge concluded in the impugned order that the disposal of the said suit was on merit.

7. In the light of the averments in the affidavit sworn by the appellant in support of the application under Order IX Rule 13 of the Code of Civil Procedure about his inability to appear and adduce evidence in the suit at the time when it was posted for defence evidence, it is not possible to think that the learned counsel representing the appellant would have argued the case notwithstanding the absence of evidence proposed to be adduced from his part. The fact that the judgment dated 30.03.2022 of the learned Additional Sub Judge, Irinjalakkuda in O.S.No.18 of 2015 does not contain any reference with regard to any point canvassed from the part of the counsel for the defendant, opposing the plaint claim, would further give the indication that the observation of the learned Additional Sub Judge in paragraph No.8 of the judgment as “Heard both sides”, was only perfunctory, and made in the routine course. Thus, it is not possible to