M/S. Shah Advertisers v. M/S. Bheema & Brothers

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE SUNIL THOMAS MONDAY, THE 29TH DAY OF JUNE 2015/8TH ASHADHA, 1937 F.A.O.No. 210 of 2014 ------------------------------ O.S. 540/2013 OF SUB JUDGE, CHAVAKKAD APPELLANT(S)/APPELLANT:

---------------------------------------- M/S. SHAH ADVERTISERS, (NEAR) GOVT.HIGHER SECONDARY SCHOOL, N.H.17, THALIKKULAM, CHAVAKKAD, REP BY PROPRIETOR NOORUDHEEN SHA, S/O.KUNJUMON, ABMBALATHU VEETTIL, THALIKULAM P O POWER OF ATTORNEY HOLDER: SAKEER, AGED 35 YEARS, S/O. ARAVASSERY VEETTIL AVARUMON, VADANAPPLILLY VILLAGE/ DESOM, CHAVAKKAD TALUK.

BY ADVS.SRI. SANTHOSH P. PODUVAL SMT. R. RAJITHA SRI. K.D. SREEVISAKH RESPONDENT(S)/RESPONDENTS:

------------------------------------------------ M/S. BHEEMA & BROTHERS, REP BY MANAGING PARTNER, MANJUNAD, S/O.LAKSHMIKANDAN, SREENIVAS MULLAKKAL, ALAPPUZHA AUTHORIZED AGENT: ARUN RAVU M G, AGED 27 YEARS, S/O. GOVINDA RAVU, MADIMUKAL VEEDU, AYYANTHOLE P O THRISSUR DIST BY ADVS. SRI. S. VINOD BHAT SRI. LEGITH T.KOTTAKKAL THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 29-06-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ww

THOTTATHIL B.RADHAKRISHNAN & SUNIL THOMAS, JJ.

--------------------------------------------------------- F.A.O.No.210 of 2014 --------------------------------------------------------- Dated this the 29th day of June, 2015

JUDGMENT

Thottathil B.Radhakrishnan, J.

The defendant in a suit for damages is the appellant.

2. Heard.

3. An ex parte decree was passed for non-appearance of the defendant. In the suit for damages, the defendant applied to have the ex parte decree set aside, because it wanted an opportunity of being heard. The court below, however, by a single line order, allowed the application imposing condition of deposit of 25% of the decree amount as a pre-condition to set aside the ex parte decree. The court below had not expressed any reason as to why it is setting aside the ex parte decree. Nor did it say as to why it has imposed a particular condition while setting aside the ex parte decree. It could be modestly said that the order is a critic one.

4. When deposit was not made in terms of the aforesaid order, the application to set aside the ex parte decree was dismissed, again by a non-speaking order.

F.A.O.No.210 of 2014

5. Judicial decisions ought to express the reasons for their making. There cannot be a straight jacket formula in considering applications to set aside the ex parte decree. There cannot also be a set formula for imposition of costs or conditions. We are unable to countenance the impugned order. Under such circumstances, we are satisfied that the application to set aside the ex parte decree ought to have been allowed without imposing any terms.

In the result, this appeal is allowed setting aside the impugned order and allowing I.A.No.564/2014 in O.S.No.540/2013 of the Court of Sub Judge, Chavakkad and thereby setting aside the ex parte decree passed in the case. Parties are directed to mark appearance before that court on 28th November, 2015. The court below will consider expeditious disposal of the suit.

Sd/- THOTTATHIL B.RADHAKRISHNAN JUDGE Sd/- SUNIL THOMAS JUDGE rkj //TRUE COPY// P.A. TO JUDGE