Parties must act in good faith and participate in court proceedings to contest a claim effectively.

JUDGMENT

P.Krishna Kumar.J The application seeking to set aside an ex parte decree, was dismissed by the trial court. The applicant/defendant is in appeal.

2. The suit was one for realisation of money based on a promissory note. Since the appellant denied the execution of the promissory note, the respondents-plaintiffs caused the document to be sent for expert opinion regarding its genuineness. The expert opinion was obtained on 30.10.2019. Later, the suit was posted for evidence on 05.07.2021. At that stage, the appellant contended that the expert had prepared the opinion in collusion with the respondents and, therefore, sought to have the promissory note forwarded to the Forensic Science Laboratory, Thiruvananthapuram, for an unbiased opinion. She also filed an application to remove the case from the list until the FSL report was received.

The court dismissed the application and proceeded with the case. The defendant remained ex parte. After considering the plaintiffs evidence, the Court pronounced judgment against the defendant. It was under these circumstances that the appellant filed the aforesaid application for setting aside the ex parte decree. The application was dismissed by the court holding that the application lacks bonafides.

3. We have heard the learned counsel appearing for the appellant.

4. According to the appellant, she was under a bona fide belief that the court would allow her application and, therefore, there was sufficient cause for allowing the petition.

5. Upon an evaluation of the facts and circumstances of the case, we find no apparent error in the impugned order. The learned Sub Judge has rightly observed that the appellant had sufficient opportunity to request the court to forward the promissory note to the Forensic Science Laboratory well before the case was listed for trial. So also, when there is already a report before the Court, it was for the appellant to have adduced evidence against the acceptability of the report. It is only if the Court held that the available report is not acceptable that a second reference need to have been made. A second report could not have been called for just for the mere asking. As noted in the order, the expert submitted the report on 30.10.2019, whereas the case was posted for evidence only on 05.07.2021. For the mere fact that his application was dismissed by the Court he ought not have remained ex parte to scuttle the further proceeding in the suit. The suit itself was instituted in the year 2015. The failure on the part of the appellant to participate in the trial cannot be appreciated. It is, therefore, evident that the appellant was not acting bonfide.

6. Faced with this situation, the learned counsel appearing for the appellant made a fervent plea that the appellant be afforded an opportunity to contest the case on the merits, even if subject to stringent conditions. In the circumstances, though we notice that the conduct of the appellant is not appreciable, we are of the opinion that, as a last chance, one more opportunity can be granted to the appellant to face trial and invite a judgment on the merits.

We are also mindful that the interests of the respondents must be adequately protected, while we take such an approach.

In the result, the appeal is disposed of as hereunder;

(i) The appellant-defendant shall furnish bank guarantee for the decree amount, inclusive of interest and cost, before the trial court, within a period of six weeks from today.

(ii) Once the Bank Guarantee is furnished by the appellant, the ex parte decree will stand set aside.

(iii) On the failure of the appellant-defendant to comply with the condition imposed as above, the appea