IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 25TH JANUARY 2011 / 5TH MAGHA 1932 FAO.No. 380 of 2010() -------------------------------- ( AGAINST IN IA 2954/2010 IN OS.320/2008 of PRINCIPAL SUB COURT,KOLLAM) --------------------------- PETITIONER/DEFENDANT ---------------------------------------- RADHAKRISHNAN, S/O. SARASAMMA, AGED 46 YEARS,VYALIL VEEDU, PEROOR, KOTTAMKKARA VILLAGE, KOLLAM. BY ADV. SRI.PEARSON S.FERNANDEZ RESPONDENT(S): PLAINTIFF ------------------------------------------ SURESHKUMAR, S/O. SATHYASEELAN, AGED 43 YEARS, SEEMA BHAVANAM, PEROOR.P.O., KOTTAMKKARA VILLAGE, KOLLAM. BY ADV. SRI.S.SUNIL NARAYANAN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 25/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts THOTTATHIL B. RADHAKRISHNAN & P.S.GOPINATHAN, JJ. ------------------------------- F.A.O.No.380 OF 2010 ------------------------------- Dated this the 25th day of January, 2011 J U D G M E N T ~~~~~~~~~~~ Thottathil B. Radhakrishnan, J. This appeal is against an order by which the court below dismissed an application under Order IX Rule 13 to set aside an ex parte decree passed in a suit for specific performance of a contract for sale. By that order, the application for condonation of delay in applying to set aside the ex parte decree was also dismissed. 2. The court below took the view that the affidavits filed by the defendant/petitioner, who is the appellant before us, did not show any convincing cause for the delay and it is merely alleged that he was treated in the hospital. The court below was justified in saying that the non-averment regarding the details of the hospital, name of doctor, name of disease etc. suggest lack of bonafides. But, it may not be correct to say that the affidavit did not contain any statement regarding the disease of F.A.O.No.380/2010 2 the defendant. It was stated that “ ” meaning thereby that he had rheumatism and that he continues to be suffering from it. The respondent/plaintiff could not file any counter affidavit before the court below since the application was disposed of on the date of expiry, while the defendant could have also provided better particulars regarding the hospital, disease etc., if he had further opportunity to bring in such materials. Therefore, we find that it is a case where the appellant could have been given further opportunity to place materials. Having heard the counsel of the parties we are also of the view that the court below could have even considered in granting relief by imposing cost since the decree that has been granted is for specific performance of an agreement for sale in relation to immovable properties and written statement has already filed denying the transaction. 3. For the aforesaid reasons we have satisfied that on the basis of the cause shown by the appellant before the court below, the applications were liable to be allowed on costs. F.A.O.No.380/2010 3 4. In the result, we set aside the impugned orders and allowed I.A.Nos.2953 and 2954/2010 in OS. 320/2008 of the Principal Sub Court, Kollam, on condition that the appellant will pay the respondent through the counsel appearing before this Court an amount of Rs.7500/- (Rupees Seven thousand five hundred only) as cost, within a period of two weeks from now. A memo regarding the payment of cost would be filed before the court below within a period of three weeks from now. The parties are directed to appear before the court below on 22.2.2011. (THOTTATHIL B. RADHAKRISHNAN, JUDGE) (P.S.GOPINATHAN, JUDGE) ps Sri.Pearson S.Fernandez, counsel for the appellant has filed a memo vide c.f. 872/11 dated 7.2.2011 to the effect that an amount of Rs.7,500/- (Rupees Seven thousand and five hundred only) has been paid by way of cost to Adv.Sri.S.Sunil Narayanan, counsel for the respondent, as per judgment dated 25.1.2011 in F.A.O.No.380/2010. sd/- Registrar (Judicial)