AISWARYA CASHEW CO Vs. KRIMPEXX OVERSEAS P LTD

JUDGEMENT

(1.) The respondent appears and as agreed to by both sides, this Writ Petition itself is heard.

(2.) The petitioner is the first defendant in O.S.82 of 2002 on the file of the Additional Sub Court, Kollam, a suit for money, filed by the first respondent. The suit was posted for trial on 13.2.2003 and then adjourned to 25.2.2003. On 25.2.2003 the parties were directed to file proof affidavit and the case was adjourned to 10.3.2003. On 10.3.2003 the defendants did not appear and contest. Hence the defendants were set ex parte and ex parte decree was passed. On the very same day the petitioner filed an application under O.9, R.13 to set aside the ex parte decree. It was averred that the petitioner was physically present in the Court at the time of roll call and the case was called and kept aside; but subsequently when the case was called, the petitioner did not hear the number and hence he was set ex parte. The first respondent plaintiff filed an objection contenting that the reasons stated in the affidavit are false and the Writ petitioner was not present in the Court. The Court below considered this aspect and set aside the ex pane order passed against the petitioner. But, the Court below directed the petitioner to pay a cost of Rs. 10,000/- to the plaintiff within two weeks. According to the Court below, considering the quantum of the claim made in the plaint, a cost of Rs. 10,000/- can be ordered to be paid.

(3.) The learned counsel for the parties admits that the suit claim is Rs. 23,40,244/- with future interest. The view taken by the learned Sub Judge is not correct. It is not the quantum of amount that is to be considered. The question to be considered is whether there was any wilful default on the party in not appearing when the case was taken up for hearing. The petitioner was set ex parte on 10.3.2003. On the very same day the petition was filed. A petition can be filed in Court before 3.00 p.m., which indicates that the petitioner was physically present in the Court on that day. So, I am of the view that there is no justification in awarding a cost of Rs. 10,000/- merely because the plaint claim is more than Rs.23 lakhs. I am of the view that a cost of Rs.2,000/- is just and reasonable in the facts and circumstances of the case. So, the order of the Court below awarding a cost of Rs. 10,000/- is to be modified and reduced to Rs. 2,000/-.