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2012 Supreme(Online)(KER) 23553
HIGH COURT OF KERALA
K.S.RADHAKRISHNAN, A.V.RAMAKRISHNA PILLAI, JJ
VASUDEVAN – Appellant
Versus
JAYADEVAN – Respondent
FIRST APPEAL FROM ORDERS 286/2012
A party can successfully seek to set aside an ex parte decree by demonstrating sufficient cause for delay, supported by credible evidence.
Headnote:
Defamation - Civil Procedure - Act Section List - The court reviewed the procedural aspects under which an ex parte decree could be set aside, particularly focusing on delay condonation and the necessity to provide adequate reasons supported by evidence, ultimately allowing the appeal.
Fact of the Case:
The appellant, facing an ex parte decree in a defamation suit, claimed he was unable to appear or prepare a defense due to personal loss and mental distress, supported by medical evidence. He sought to set aside the decree.
Issues: Whether the delay in filing a written statement should be condoned and whether there were valid grounds to set aside the ex parte decree.
Ratio Decidendi: The court established that even if there is an ex parte decree, a party can have it set aside if they show sufficient cause and reasonable evidence for their absence.
Final Decision: The appeal is allowed, setting aside the ex parte decree on the condition of payment of costs.
JUDGMENT
Thottathil B. Radhakrishnan,J.
The defendant in a suit for damages for alleged defamation is the appellant. On his non appearance and failure to file written statement, the trial court passed an ex parte decree. We looked into that judgment also. The decree for damages on defamation had been issued solely relying on the proof affidavit of the plaintiff. The appeal in hand is against the common order by which the court below refused to condone delay of 158 days and set aside the ex parte decree. The appellant who is now 78 years old deposed before the court below. He produced medical certificates. A doctor was examined. Appellant's plea is that he lost his daughter and son who suffered much out of renal failure etc. His further plea is that his mental status was such that he F.A.O.No. 286 of 2012 could not appropriately brief his counsel to have the written statement drafted. The written statement was also produced along with the application seeking that the ex parte decree be set aside. The learned counsel for the contesting plaintiff points out that the fact of the matter remains that contemporaneous with the so-called absence in the trial court, the appellant had been diligently prosecuting complaints filed by him in other jurisdictions against different persons, including the plaintiff who is now around 65 years of age. We have seen the quality of allegations and the nature of defence set up by the plaintiff and the defendant. Having regard to the fact that there is no contra evidence before the court below in connection with the applications from which this appeal arises and taking into consideration the evidence rendered by the appellant, we are satisfied that he has shown sufficient cause to have the ex parte decree set aside by condoning the delay, however on terms.
F.A.O.No. 286 of 2012 In the result, this appeal is allowed setting aside the impugned common order and also the ex parte decree passed in O.S.No.430/2010 on the file of the IInd Additional Sub Court, Thrissur on condition that the appellant pays an amount of Rs.3,000/-(rupees three thousand only) to the respondent as costs payable to the counsel appearing for the respondent before this Court within a period of three weeks, failing which this appeal will stand dismissed automatically. Parties are directed to mark appearance before the court below on 06.11.2012. Appeal ordered accordingly.
Sd/-
(Thottathil B. Radhakrishnan,Judge)
