RATHEESH KUMAR AND ORS. Vs. RUDOLF VOLFGANG HAINS

JUDGEMENT

(1.) The appellants are the defendants in O.S. No. 354 of 2013 on the file of the Court of the Subordinate Judge of Chavakkad. The sole respondent, who is a German national, is the plaintiff therein. The suit instituted by the respondent is one for realisation of the sum of Rs. 32,50,000/ - corresponding to 50,000 Euros with interest and costs. The suit was originally instituted on 21.2.2012 in the Court of the Subordinate Judge of Thrissur as O.S. No. 341 of 2012. Summons was issued to the defendants on 23.02.2012 with the hearing date fixed as 10.08.2012. On that day, the defendants appeared through counsel and the suit was adjourned to 6.11.2012 for the written statement of the defendants. On 6.11.2012 the defendants were granted 15 days' further time to file their written statement and the suit was adjourned to 10.01.2013. The defendants filed their written statement on 9.1.2013 resisting the suit. The suit thereafter stood posted on 10.01.2013, 27.3.2013 and 5.8.2013. In the meanwhile, a Sub Court was established at Chavakkad. Thereupon, on 1.8.2013, the suit was transferred to the Court of the Subordinate Judge of Chavakkad where it was taken on file and re -numbered as O.S. No. 354 of 2013.

(2.) After the suit was transferred, it stood posted on 5.8.2013, 3.9.2013, 5.10.2013 and thereafter to 1.11.2013. On 1.11.2013 as there was no sitting, the suit was re -posted to 30.11.2013 and on 30.11.2013 it was adjourned to 15.2.2014 for hearing the interlocutory applications filed by the plaintiff. Since there was no sitting on 15.2.2014, the suit was re -posted to 19.2.2014. On 19.2.2014, issues were settled and the suit was included in the special list of 6.3.2014. The court below also directed that the defendant has the right to begin evidence. The suit was ordered to be called on 28.2.2014. On that day, the court below allowed I.A. No. 367 of 2014, an application filed by the plaintiff under Order XVI Rule 1 of the Code of Civil Procedure to issue summons to the witnesses named therein. On the very same day, it allowed I.A. No. 386 of 2014, an application filed while the suit was pending in the Sub Court, Thrissur as I.A. No. 1828 of 2012, to issue summons to the Manager, State Bank of India, and the Secretary, Vadanappilly Grama Panchayat, to produce the documents referred to in the application. The suit was thereafter adjourned for evidence to 6.3.2014. On 6.3.2014, the defendants filed I.A. No. 408 of 2014 to remove the suit from the list on the averment that the first defendant who is conducting the case is bed ridden on account of back pain. Along with the said affidavit, the first defendant produced a medical certificate issued by the doctor treating him. The trial court dismissed the said application holding that the intention of the defendants is to prolong the matter so as to vex, annoy and harass the plaintiff. The trial court also held that the alleged illness is not at all a relevant ground to remove the case from the list. Consequently, the defendants were set ex parte. Ex parte evidence on the side of the plaintiff was adduced and the suit was heard. By judgment delivered on 7.3.2014, the suit was decreed with costs.

(3.) The defendants thereupon filed I.A. No. 679 of 2014 under Order IX Rule 13 of the Code of Civil Procedure praying that the ex -parte decree passed on 7.3.2014 may be set aside. The said application was filed on 4.4.2014, within the period of limitation prescribed for the purpose. On the said application, the court below ordered notice to be given to the respondent. Later, when the application was called on for hearing on 11.6.2014, for want of representation on behalf of the petitioners/defendants, it was dismissed for default. On application filed by the defendants as I.A. No. 1341 of 2014, I.A. No. 679 of 2014 was restored to file by order passed on 24.7.2014. The application thereafter stood posted to 30.7.2014 for counter and hearing. On that day, it was adjourned to 8.8.2014 with a direction to the defendants to give notice to the respondent/plaintiff. However, when the application came up for hearing on 8.8.2014, the trial court ordered notice to the respondent/plaintiff returnable by 14.10.2014. On 14.10.2014 as the respondent plaintiff did not appear in spite of service of notice, he was set ex -parte and I.A. No. 679 of 2014 was heard. By order passed on 27.10.2014, the trial court dismissed I.A. No. 679 of 2014 holding that no valid reasons have been given in the application. The defendants have aggrieved thereby filed this appeal.