IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 6TH JANUARY 2009 / 16TH POUSHA 1930 FAO.No. 219 of 2008() --------------------- AGAINST THE ORDER DATED 30/06/2008 IN IA 12/2005 IN OS.7/2000 of SUB COURT, KOTTARAKKARA .................... APPELLANT/PETITIONER/DEFENDANT: -------------------- NIZARUDEEN, (NISAMUDEEN) S/O.SHAMSUDEEN, R/AT.THUNDUVILA PADINJATTATHIL NEDUMPANA, KOLLAM. BY ADV. SRI.B.SURESH KUMAR RESPONDENT/RESPONDENT/PLAINTIFF: --------------- NEDUVATHOOR GRAMA PANCHAYATH REP. BY ITS SECRETARY KOTTARAKKARA TALUK, KOLLAM. ADV. SRI.K.V.ANIL KUMAR FOR R THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 06/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: KURIAN JOSEPH & C.K.ABDUL REHIM, JJ. ----------------------------------------- F.A.O.No.219 of 2008 ----------------------------------------- Dated this the 6th day of January, 2009 JUDGMENT Kurian Joseph,J. This is an appeal against the order in I.A.No.12/2005 in O.S.No.7/2000 on the file of the Sub Court, Kottarakkara. As per the impugned order the application under Order 9 Rule 13 CPC filed by the petitioner was dismissed. It is seen from the order that the court was unable to find any bona fides on the part of the appellant. The plaintiff is the Panchayat. The suit is instituted for recovering an amount of Rs.2,18,618/- with interest. The amount represents the bid amount of the meat stall auctioned by the Panchayat for the year 1997-98. The suit was decreed ex parte on 28-2-2003. After around two years only the petitioner approached the trial court for setting aside the ex parte decree. It is seen that the delay was condoned on terms. However, the main application was dismissed on the ground that there is no merit. Though several contentions are urged on the merits of the case, we are afraid, we may not be justified in going to those contentions. Those are all matters for the parties to prove before the trial court. The only question before us is whether an opportunity should be given to the appellant-defendant. Having regard to the F.A.O.No.219 of 2008 -:2:- entire facts and circumstances of the case and after having heard the counsel appearing on both sides, we are of the view that it is only in the interests of justice that a fresh opportunity is given to the appellant to defend the case on merits, on terms. Accordingly we set aside the impugned order dated 30-6-2008 in I.A.No.12/2005 in O.S.No.7/2000 on the file of the Sub Court, Kottarakkara. The application stands allowed. The parties will appear before the Sub Court, Kottarakkara on 16-2-2009. The suit shall be disposed of within another six months. The appellant shall pay costs to the tune of Rs.2,000/- to the respondent through the counsel appearing before this court within a period of one month from today and a memo to that effect shall be produced before the Sub Court, Kottarakkara on 16-2- 2009. If not, the appeal will stand dismissed. (KURIAN JOSEPH, JUDGE) (C.K.ABDUL REHIM, JUDGE) ahg. KURIAN JOSEPH & C.K.ABDUL REHIM, JJ. --------------------------- F.A.O.No.219 of 2008 ---------------------------- JUDGMENT 6th January, 2009