SHAJUDHEN P.P. Vs. N.K.ASHRAF

JUDGEMENT

(1.) The original petition has been filed challenging Ext.P3 order setting aside an ex-parte decree on terms. The original petition has been filed by the defendant contending that the condition to pay Rs.10.00 lakhs towards arrears rent/licence fee is onerous and should not have been imposed while setting aside an ex-parte decree.

(2.) According to the petitioner, the petitioner is put in possession of the plaint schedule building on the basis of Ext.P4 Licence Agreement. It is contended that even though the agreement is titled as a licence agreement, it is in fact a lease. The agreement says that there is a liability to pay a licence fee of Rs.1,40,000.00 per month from 1/7/2015 onwards. The suit was filed for mandatory injunction and damages for occupation of the premises after the termination of the licence. Even though written statement was filed, the defendant/petitioner remained ex-parte and the suit was decreed ex-parte directing payment of a sum of Rs.23,20,078.85 as arrears of licence fee for the period till January, 2020 and a further direction to hand over vacant possession of the plaint schedule building to the plaintiff/respondent or his power of attorney holder. Ext.P5 is the copy of the judgment. The petitioner filed an application for setting aside the ex-parte decree.

(3.) The Subordinate Judge, Vatakara allowed the application and set aside the ex-parte decree, on condition of deposit of Rs.10.00 lakhs towards arrears of rent. The order of the court shows that the petitioner failed to participate in the trial when the suit was listed for trial. The Court found that the attempt of the petitioner is to protract the proceedings. It was noticed that the prescription of the doctor produced along with the application, which cites medical reasons as the reason for non-appearance, was the prescription issued from a skin clinic. It is also stated that no reason was stated for nonrepresentation on the day on which the case was posted for evidence. Despite the above facts, the Subordinate Judge, relying on the judgment in Union of India vs. Ramcharan [AIR 1964 (SC) 215], took the view that the Court need not be extremely strict and a liberal approach is essential to do substantial justice between the parties and hence set aside the ex-parte decree. The Court took into account the fact that no amount has been paid towards the licence fee or rent, as the case may be, after filing the suit and even on the day of the filing of the suit more than Rs.20.00 lakhs was due as arrears of rent and in the circumstances, directed a deposit of Rs.10.00lakhs for the purpose of setting aside the ex-parte decree.