IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 FAO.No. 130 of 2006() --------------------- AGAINST THE ORDER DATED 14/11/2005 IN IA.296/04,1563/04 IN OS.392/2000 of ADDL.SUB COURT,KOLLAM .................... APPELLANT/PETITIONER-DEFENDANT: -------------- T. SANTHAKUMARI, D/O. THANKAMMA, VASANTHA VIHAR, LAKSHMI NADA, KOLLAM-13. BY ADV. SRI.S.SANTHOSH KUMAR RESPONDENT(S): RESPONDENT-PLAINTIFF: -------------------- LANCY FERNANDEZ, S/O. M.P. FERNANDEZ, MACDALE, PALLITHOTTAM, KOLLAM. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 10/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. ------------------------------- F.A.O. No.130 of 2006 ------------------------------- Dated this the 10th June, 2009 J U D G M E N T Raman, J. This appeal is against an order dismissing the application to set aside ex parte decree, after refusing to condone the delay. Appellant herein is the defendant in the suit. The suit was one for specific performance. The suit was eventually decreed ex parte, since the defendant was absent on the appointed day. Thereafter, with an inordinate delay of 367 days, he filed an application for restoration. However, no evidence was adduced in support of the application for condonation of delay. Therefore, the court below dismissed the petition for condonation of delay and consequently the application for setting aside ex party order was also dismissed. Hence, this appeal. 2. We have heard the learned counsel appearing for the appellant. The contention of the appellant is that on the FAO.130/2006 2 day on which the delay petition happened to be posted, she could not be present which is a fact and why she was absent on that day is also not known. However, the fact remains that we are not informed of the reasons regarding the absence on the day on which I.A. was posted. According to the appellant, the property in question is a residential property where the petitioner is residing and if an opportunity is not afforded, the appellant is likely to loose his residential property and it will cause great hardship. 3. In so far as the appellant has not adduced any evidence in support of the application for condonation of delay for the long delay of 367 days, we can condone the delay only on terms. In the result, the appeal is allowed. The impugned order is set aside and suit is restored to file, however on condition that the appellant shall pay as cost to the respondent an amount of Rs.1000/= which may be deposited before the court below, within a period of one month from today, FAO.130/2006 3 failing which the appeal will stand dismissed. On payment of the said amount, application for condonation of delay will stand restored and the appellant can adduced evidence and the court below will dispose of the matter, in accordance with law. P.R.RAMAN, JUDGE P.BHAVADASAN , JUDGE. nj.