IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 29TH NOVEMBER 2010 / 8TH AGRAHAYANA 1932 FAO.No. 255 of 2010() --------------------- AGAINST THE ORDER IN IA 29/2009 IN OS.497/2006 of PRINCIPAL SUB COURT,KOLLAM .................... APPELLANT/PETITIONER/DEFENDANT: ----------------------------------------------- A.ZEENATH, W/O.S.SHAFI MUSALIAR, AGED 43 YEARS, RESIDING AT SHAFI MANZIL, T.K.M.COLLEGE P.O./, KARIKODE, KOLLAM. BY ADV. SRI.E.D.GEORGE RESPONDENT(S): RESPONDENTS/ PLAINTIFFS: -------------------------------------------------------- 1. A.LAILA, W/.HASHIM, AGED 40 YEARS, RESIDING AT SALMA, VEMBAYAM P.O., THIRUVANANTHAPURAM. 2. A.SAFIA, W/O.ANZARI LABBA, AGED 40 YEARS, RESIDING AT KAMALIYA MANZIL, KANIYAPURAM P.O., THIRUVANANTHAPURAM. 3. A.SABEENA, W/O.AZAD, AGED 37 YEARS, RESIDING AT AZAD GARDEN, ASHOKAPURAM, ALUVA. 4. A.SALEENA, W/O.T.J.FAIZAL, AGED 34 YEARS, RESIDING AT ARAFA, GANDHINAGAR HOUSING COLONY, AMALAGIRI P.O., KOTTAYAM. R1-4 BY ADVS. SRI.E.K.NANDAKUMAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH FOR THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 29/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs/ THOTTATHIL B. RADHAKRISHNAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 255 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of November, 2010. JUDGMENT Thottathil B. Radhakrishnan, J, This appeal is against an order by which the court below refused to set aside an ex-parte decree. The application seeking such relief was filed within the period prescribed by law. The plea of the appellant/defendant was that she was sick on 1.12.2008, the day on which the suit stood posted for trial. She filed an affidavit to that effect. In opposition, the plaintiffs had filed statement of objections, wherein they refuted that the defendant is sick. The suit is for partition. The plea of the defendant is that the subject matter of the suit is not partible. As against the affidavit of the defendant asserting that she was sick, there is no contra affidavit. Under such circumstances, the court below should have taken a lenient approach and ought to have granted the relief. FAO.255/2010. 2 In the result, this appeal is allowed on condition that the appellant will pay to the respondent a sum of Rs.3,500/- as costs within a period of three weeks. If such cost is paid, the impugned order will stand set aside and I.A.29 of 2009 in O.S. 497 of 2006 of the Principal Sub Court, Kollam will stand allowed. The court below will thereupon list the matter for trial. Thottathil B. Radhakrishnan, Judge P. Bhavadasan, Judge sb.