IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932 FAO.No. 242 of 2010() -------------------------- CMA.120/2009 of VI ADDL.DISTRICT COURT, ERNAKULAM OS.334/2006 of I ADDL.SUB COURT,ERNAKULAM (IA.9235,9236/2009) .................... APPELLANTS/PETITIONERS/DEFENDANTS -------------------------------------------------- 1. NAZEER, AGED 41, S/O. HAMEED, RAZIYA MANZIL, VATTEKATTU ROAD, KATHRIKADAVU, KALOOR, KOCHI. 2. NAVAS, AGED 39 S/O. HAMEED, RAZIA MANZIL, VATTEKATTU ROAD, KATHRIKADAVU, KALOOR, KOCHI. BY ADVS. SRI.K.S.SAJEEV KUMAR SRI.LAJI SAM ZACHARIAH RESPONDENT(S)/ RESPONDENT/ PLAINTIFF ---------------------------------------------------- RAZIA, AGED 35 YEARS, W/O. MUHAMMED RAFFI, RAFEEK MANZIL, NADUVATH NAGAR.P.O., CHERTHALA-688 559 BY ADV.SRI.J.OMPRAKASH THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 24/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ. ------------------------------------------------------------------------ FAO No.242 of 2010 ------------------------------------------------------------------------ Dated 24th September 2010 Judgment Thottathil.B.Radhakrishnan, J. This appeal is filed against an order, refusing to set aside an ex parte preliminary decree in a suit for partition and also dismissing the application for condonation of delay in filing the said application. The sole plaintiff is the sister of the two defendants. She has sued on the premise that the suit properties belonged to a large extent, to their father, except an item, in which, she conceded that the father had only 1/3rd share, the remaining 2/3rd share, being with the brothers. 2. The defendants sought to set aside the ex parte decree and also sought condonation of delay in applying to set aside the ex parte decree, with applications supported by the affidavit of the first defendant. They set out their defence to the suit in the affidavit and pleaded that the second defendant was an alcoholic and was under FAO 242/10 2 the influence of drugs (narcotics) and that he was under treatment for a considerable length of time for substance abuse. The second defendant is not educated and that the defendants failed to appear as a consequence of different reasons attributed in the affidavit. The second defendant had not informed the first defendant, though summons were served on the second defendant. Before the court below, apart from the affidavits filed in support of the applications, both the defendants tendered oral evidence. The psychatrist, who treated the second defendant was also examined. The medical certificate and OP cards in relation to the treatment of the second defendant were also on record. The court below took the view that the treatment was prior to the institution of the suit and there was no material to hold that the second defendant had such ill- health by which he could not understand the gravity of being served with the notice on a suit. 3. We have looked into the evidence and are of the view that in the absence of any contra evidence by the FAO 242/10 3 plaintiff, who was the respondent before the court below in the application to set aside the ex parte decree, the evidence tendered by PWs 1 to 3, corroborated by Exts.A1 to A3 commands acceptance and the defendants ought to have persuaded the court below that on law and in facts, there were sufficient grounds to hold that they had shown sufficient cause for their non-appearance before the court below in answer to the summons in the suit and had also explained the delay and there was, hence, sufficient cause to condone the delay. 4. In spite of the serious oppositions raised on behalf of the plaintiff that the status of the second defendant as an alcoholic and a drug addict should not stand in the way of the plaintiff, enjoying the fruits of the decree, we are of the view that the defendants ought to have been given an opportunity to contest the suit on merits. The learned counsel for the appellant is quite right in saying that the merits of the matter as regards the opposition to the plaint claim would not be the FAO 242/10 4 consideration. Yet we have noticed that on merits, the defendants' contention is of total denial of the right of the plaintiff over the property. On the totality of the evidence tendered before the court below in respect of the applications from which this appeal arises, we are satisfied that there is no ground to assume that the defendants had deliberately evaded the process of court or were negligent in appearing before the court below and contesting the suit in time. However, we are of the view that the appeal could be allowed only on terms. 5. In the result, this appeal is allowed, setting aside the impugned orders and allowing the applications from which this appeal arises. This will be on terms that the appealing defendants will pay to the plaintiff/respondent an amount of Rs.12,500/- (Rupees Twelve Thousand Five Hundred only) as costs by making such payment to the learned counsel appearing before this Court within a period of two weeks from now. The parties will appear before the court below on 11.10.2010. The court below will FAO 242/10 5 consider the request of the plaintiff to expedite disposal of the suit, having regard to the fact that it was instituted in the year 2006. THOTTATHIL.B.RADHAKRISHNAN, JUDGE P.BHAVADASAN, JUDGE sta FAO 242/10 6