VALAPPIL AZEEZ Vs. MOIDU AMMAD

JUDGEMENT

(1.) The defendant in O.S. No. 40 of 2008 on the file of the Subordinate Judge's Court, Vatakara is the Writ Petitioner. The said suit was filed by the respondent herein for realisation of Rs. 1,50,000/- and future interest at the rate of 18% per annum on the foot of a dishonoured cheque. The plaintiff had invoked the summary procedure prescribed under Order XXXVII C.P.C. The suit was instituted on 31.3.2008. Ext.P1 is the plaint. The petitioner remained exparte and the suit was decreed ex parte on 16.6.2008. Ext.P2 is the judgment. Thereafter the petitioner filed Ext. P3 application (R.P.I.A. No. 988 of 2008) under Order IX Rule 13 C.P.C. for setting aside the exparte decree. The respondent/plaintiff opposed the application by filing Ext.P4 counter affidavit. The petitioner produced two prescriptions by Dr. M.C. Vasu, Medical Practitioner in support of his contention that he was unable to appear before the court below on the date when the suit was posted for hearing. He also filed Ext.P5 proof affidavit. The plaintiff did not cross examine the petitioner. The Trial Court dismissed Ext.P3 application as per Ext.P6 order dated 3.12.2008 on the following grounds:

(2.) I heard the learned Counsel for the Writ Petitioner as well as the learned Counsel appearing for the respondent/decree holder.

(3.) Assailing Exts.P6 order and P7 judgment the learned Counsel appearing for the Writ Petitioner/defendant made the following submissions before me: