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NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3173 OF 2017

[ @ SPECIAL LEAVE PETITION (C) NO. 13212 OF 2016 ] ALBERT MORRIS                                 Appellant(s)

                               VERSUS J.B. SIMONS                                   Respondent(s)

J U D G M E N T

KURIAN, J. 1. Leave granted.

2. The appellant is aggrieved since his application under Order IX Rule 13 CPC has been dismissed by the Trial Court and the same has been upheld by the High Court in the First Appeal.

3. The main ground taken by the Trial Court as well as  by  the  High  Court  is  that  along  with  the application  for  condonation  of  delay,  the  written statement  was  not  filed.   It  is  also  stated  that there was no application for condonation of delay in filing the application under Order IX Rule 13 CPC.

4. It  is  seen  from  the  records  that  after  the appellant was set ex-parte for not filing the written statement, the respondent herein (the plaintiff) was

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granted time to pay the balance Court Fee and for ex-parte  evidence.   Thereafter,  the  case  was adjourned  by 10  days for  payment of  balance Court Fee.  In our view, when the plaintiff could be shown the  indulgence,  the  same  equity  should  have  been meted out to the appellant (defendant).  After all, this is a suit for recovery of money and in our view, the Court should have put the parties at least to terms  and  then  disposed  of  the  matter  on  merits expeditiously.

5. In  that view  of the  matter, we  set aside  the orders passed by the High Court and the Trial Court. The  application  filed  under  Order  IX  Rule  13  CPC stands allowed.  The appellant is directed to file his  written  statement  positively  within  two  weeks from today.  It is made clear that if the written statement  is  not  filed  within  two  weeks,  as abovesaid, the dismissal order passed by the Trial Court will stand affirmed.

6. Having regard to the background of the case, we direct the appellant to pay costs of Rs. 25,000/- to the  respondent.   The  costs  shall  be  paid  before filing of the written statement.

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7. With the above observations and directions, the appeal is disposed of.

No costs.  .......................J.

             [ KURIAN JOSEPH ]  

.......................J.               [ R. BANUMATHI ]  

New Delhi; February 23, 2017.