IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 1ST FEBRUARY 2011 / 12TH MAGHA 1932 FAO.No. 302 of 2010() ---------------------------------- IA. NO.1223/2008 IN OS.160/2003 of PRINCIPAL SUB COURT,ATTINGAL .................... APPELLANT/PETITIONER/DEFENDANT -------------------------------------------------- A.M.NAJEEB, S/O.ALIYARUKUNJU, P P V HOUSE, PALLIKKAL.P.O., KILIMANOOR. BY ADVS. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SRI.K.RAVI (PARIYARATH) RESPONDENT(S): RESPONDENT/PLAINTIFF --------------------------------------------------------------- YOOSUF, S/O.MUHAMMED BHASHA, BISMI MANZIL, P T JUNCTION, SOORYA NAGAR, KACHANI.P.O., THIRUVANANTHAPURAM-695 013. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 01/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON IA. NO.3550/2010 IN FAO. NO.302/2010 DISMISSED 01/02/2011 SD/- THOTTATHIL B.RADHAKRISHNAN, JUDGE SD/- P.S.GOPINATHAN, JUDGE TRUE COPY P.A. TO JUDGE tss THOTTATHIL B.RADHAKRISHNAN & P.S.GOPINATHAN, JJ. ----------------------------------- F.A.O.No.302 OF 2010 ------------------------------------ Dated this the 1st day of February, 2011 JUDGMENT Thottathil B.Radhakrishnan,J. This appeal is against the order by which the court below dismissed applications to condone the delay in applying to set aside an ex parte decree and also to have the ex parte decree set aside. The applications were supported by affidavits stating certain reasons. Objections were filed to the applications. While it may be true that no evidence was tendered in court by the parties or no documentary evidence was produced, the court could not have rejected the applications by a single line order on the ground that there is no evidence. Affidavit is one form of evidence. In interlocutory matters, primarily, exercise will be on the basis of affidavits, though parties could be FAO.302/10 2 permitted to adduce evidence. On the basis of the availability of evidence, we do not find that the impugned order is proper. In our view, it is cryptic. The same is only to be set aside. This FAO is, therefore, allowed setting aside the impugned orders. By the force of this judgment, the order on the application to condone delay and the application to set aside the ex parte decree will stand vacated. The court below will take up those applications and pass orders afresh after hearing the parties and granting opportunity to adduce evidence, if they request for that. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- P.S.GOPINATHAN, Judge. kkb.5/2.