IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 FAO.No. 90 of 2006() -------------------- AGAINST THE ORDER DATED 18/08/2005 IN IA.872/93 & 873/93 IN OS.272/1999 OF ADDL.SUB COURT,PARAVUR APPELLANTS-PETITIONERS-DEFENDANTS: ------------------------------------------------------ 1. MUHAMMADALI, S/O. ABDULRAHIMAN, ZIYAD MANZIL, MADATHUMPADICKAL, MUPPATHADAM KARA, KADUNGALLUR VILLAGE. 2. AYSHA BEEVI, W/O. MUHAMMADALI, ZIYAD MANZIL, MADATHUMPADICKAL, MUPPATHADAM KARA, KADUNGALLUR VILLAGE. BY ADV. SRI.K.A.JALEEL SRI.T.T.MUHAMOOD RESPONDENT: RESPONDENT-PLAINTIFF: ------------------------------------ KERALA PERMANENT FUNDS (P) LTD., REPRESENTED BY ITS MANAGING DIRECTOR, K.P. SOMANATHAN NAIR, THRIKKARIYOOR KARA, KOTHAMANGALAM TALUK. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 08/06/2009, THE COURT ON 11/06/2009 DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. = = = = = = = = = = = = = = = = = = = = F.A.O. 90 OF 2006 = = = = = = = = = = = = = = = = DATED THIS, THE 11TH DAY OF JUNE, 2009. J U D G M E N T Raman, J. This is an appeal by the defendants, who were set ex parte and a decree was passed. Thereafter, they had preferred a petition for setting aside the ex parte decree along with a petition for condonation of delay, since there was an inordinate delay of 156 days in filing the said application. 2. In the affidavit filed in support of the petition for condoning the delay, it was averred that Mohammadali, the first petitioner was suffering from hamiplegia due to arthritis from 20.8.2002 to 7.3.2003 and that he had been undergoing treatment under the supervision of Dr. P.K. Noorjihan at Ernakulam. The second defendant is his wife and she was nursing him as a bye-stander and hence both of them could not appear before the court on the appointed day ie. on 4.9.2002 and 5.9.2002. In support of the averments, the first petitioner himself examined as PW.1. The only document produced was Ext.A1 which is a medical certificate said to have F.A.O. 90/2006 :2: been issued by Dr. Noorjahan. The reason put forth in the affidavit was strongly refuted in the counter affidavit filed by the plaintiff. The court below analysed the contentions with reference to the evidence produced and it was found that Ext.A1 does not contain the name of the hospital and there is nothing to show as to whether the first petitioner was treated as an inpatient or as an out patient. To make matters worse, it even did not contain a seal of the hospital. Though PW.1 has stated while examined that records will be available in the hospital for proving his claim and that there is no hurdle in producing the same in court, the court recorded that no attempt was made to produce the said document before court which was readily available. If Ext.A1 is not an acceptable evidence, there is no evidence other than the epsi dixit of the appellants. It must be remembered that if the case of the appellants was that the first appellant was hospitalised for a very long period between 20.8.2002 to 7.3.2003, certainly the hospital records could have been summoned to inspire confidence in the mind of the court that there was no negligence or default on the part of the appellants in not appearing in the court on the appointed day. Further, the doctor who issued Ext.A1 was also not examined. The court, in such circumstances, F.A.O. 90/2006 :3: held that the story put forth by the petitioners is only a figment of imagination for getting favourable orders from the court under the guise that there was sufficient reason for their non appearance in the court on the appointed day. It was admitted by PW.1 that his wife was not suffering from any disease and according to him, his wife had informed this fact to the counsel and an application was also moved before the court. But the court found no such application for adjournment was moved and it was a falsehood pressed into service. If as a matter of fact, information was conveyed to the counsel and there was any mistake in the Office in not filing the application for adjournment, an affidavit from the Advocate or from the Office could have been produced, which also was not done. In these factual situation, the reasons advanced for condonation of delay, as rightly found by the court below, was not supported by satisfactory evidence. 3. Though the circumstances are as stated above, we find that this is a suit based on a mortgage and written statement had been filed. If the reasons as advanced for non appearance is true, certainly it could be said that there was no negligence on the part of the appellants in not appearing F.A.O. 90/2006 :4: before the court below. So this is a case where proper evidence was not adduced. If as a matter of fact, the first appellant was admitted to the hospital for more than five months, certainly, there will be some documents. The non production of the documents need not stand in the way of the court in giving one more opportunity to prove the same. Justice demands in the circumstances that the appellants be given an opportunity. It is also stated by the learned counsel appearing on behalf of the appellant that his clients are illiterate persons and if only they were properly advised they would have taken steps to produce better evidence in the case. If we in the circumstances were to remand this case for fresh consideration for enabling the appellant to adduce additional evidence in the matter, it would only further delay the process of litigation, which, at any rate, has to be avoided as it is not in the interest of both sides. The alternate solution available in such circumstances is to allow this petition for condonation of delay on terms. By doing so it will not prejudice the respondents since the amount is secured by the mortgage. 4. So we adopt the latter course. In the circumstances, we allow this appeal on compassionate ground; however on terms that the appellants shall F.A.O. 90/2006 :5: deposit an amount of rs. 2,000/- (Rupees two thousand only) before the court below within a period of one month from today, failing which the appeal will stand dismissed. In case the amount is deposited the order impugned in this appeal will stand set aside and the suit restored to file. The appeal is allowed as above. P.R. RAMAN, JUDGE. P. BHAVADASAN, JUDGE. KNC/-