IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 FAO.No. 13 of 2008() -------------------- AGAINST THE ORDER IN IA.NO.3655/2006 IN OS.59/2003 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT/PETITIONER/DEFENDANT: ------------------------------------------------------- THOMAS VARGHESE, S/O.C.V.VARGHESE, GRACE VILLA, MOOSAVARIKUNNU, PUNALUR,KOLLAM DIST. REP.BY HIS POWER OF ATTORNEY HOLDER GIRIJA SHANKAR BHATTATHIRI, S/O.A.P.GOPALAKRISHNA BHATTATHIRI, ADIMUTTATHU MADOM, BUDHANOOR POST, CHENGANNUR, ALAPPUZHA DISTRICT. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW RESPONDENT(S): RESPONDENT/PLAINTIFF: ------------------------------------------------------------ PADMINI GOPALAKRISHNAN, W/O. GOPALAKRISHNAN, AISWARYA HOUSE, MANJIKULAM, PALAKKAD DISTRICT. ADV. SRI.BINOY VASUDEVAN FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 04/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 13 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of August, 2009. JUDGMENT Raman, J, This is an appeal against an order dismissing the application seeking to set aside the ex-pare decree passed against the defendant-appellant. The suit is one for recovery of amount due from the defendant. The suit was listed to 22.8.2006. The power of attorney holder, who filed the suit was laid up due to chicken-pox and he could not give necessary instructions to the counsel to conduct the case or for cross-examining the plaintiff. Obviously the suit itself was contested by the defendant through the power of attorney holder. But when the case was listed, the defendant being absent, he was declared ex-parte. Therefore, when the defendant himself had entrusted the matter to the power of attorney holder, who happened to be absent, the question to be considered is whether this is a fit case where the ex-parte decree is to be set aside. 2. The court below found that when the matter was F.A.O. 13/2008. 2 posted for evidence, petitioner was absent. It was recorded by the court below that on the day on which the petition was posted for evidence, petitioner was absent and no affidavit was filed in support of the contention raised. The respondent also did not adduce any evidence and the matter was heard. But the learned counsel appearing for the appellant showed us the proceedings sheet to show that even though the petitioner was absent when the case was called, subsequently he turned up. So it is not a case where he absented himself totally from appearing. The court could have then and there asked him to give evidence and proceed accordingly. In the circumstances, we feel that an opportunity ought to have been given to the petitioner to contest the matter on merits. 3. After hearing both sides, in the factual situation as noticed above and taking a lenient view, we allow this appeal on terms. Accordingly, the appeal will stand allowed in case the appellant pays an amount of Rs.3,000/- by way of costs to be paid to the respondent through counsel before this court within a period of two weeks from today. On such payment, the suit will stand restored to file F.A.O. 13/2008. 3 and the court below will dispose of the matter in accordance with law after hearing both sides. In case of default in making the payment, the appeal will stand dismissed. The parties shall appear before the court below on 7th September, 2009. P.R. Raman, Judge P. Bhavadasan, Judge sb. Sri. P.Ramachandran Nambiar Advocate for the appellant has filed a memo vide C.F.5237/09, dated 11/08/2009 to the effect that an amount of Rs.3,000/- by way of costs has been paid within the stipulated time to Sri.Benoy Vasudevan, Advocate for the respondent as per judgment dated 04/08/2009 in F.A.O.13/2008. Sd/- Registrar (Judicial)