IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 8TH DECEMBER 2010 / 17TH AGRAHAYANA 1932 FAO.No. 15 of 2009 --------------------------- [I.A. NO.1253/2007 IN OS.NO.170/2004 OF SUB COURT, OTTAPPALAM] .................... APPELLANT/PETITIONER/DEFENDANT: --------------------------------------------------------- ANNAMMA, W/O.LATE DEVASYA, KARIMBIL VEETTIL, KUNNAPPALLY DESOM, PATHAIKKARA VILLAGE, PERINTHALMANNA TALUK. BY ADVS. SRI.L.MOHANAN, SMT.LIGEY ANTONY. RESPONDENT/PLAINTIFF: -------------------------------------- P.S.GEETHA, D/O.T.RUGMINI AMMA, SATHYASREE VEEDU, KOTHAYOOR DESOM, VANIYAMKULAM AMSOM, OTTAPALAM TALUK. BY ADV. SRI.SANTHEEP ANKARATH. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 08/12/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. THOTTATHIL B.RADHAKRISHNAN & P. BHAVADASAN, JJ. --------------------------------- F.A.O.No.15 OF 2009 --------------------------------- Dated this the 8th day of December, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. 1.The defendant in a suit for recovery of money is the appellant. She failed to appear before the court below on the date on which the case was listed for trial in the special list. In her written statement, she made total denial of the plaint claim and the transaction as projected by the plaintiff. She is aged more than 80 years. She applied to set aside the ex parte decree within the prescribed time. In support of that application, she said that she had been at Trivandrum and had to consult an Orthopedist in the Medical College in connection with her Osteo Arthritic condition. Ext.A1 is the certificate issued by PW2, the Doctor who also gave evidence. FAO.15/09 2 The court below, however, took the view that in spite of the defendant tendering evidence as PW1 and the Doctor as PW2, it is not shown that there was sufficient cause for the non-appearance of the defendant on the date on which the suit stood listed for trial. The court below has gone to the extent of disbelieving the medical certificate. The reason attributed by the court below is that while the defendant stays in Perinthalmanna, she is shown to have gone to Trivandrum as the consultation with the Doctor was at Trivandrum. The court below also appears to have arrived at the view that Ext.A1 was falsely issued for the purpose of supporting the case of the defendant. 2.In matters relating to appreciation of evidence as regards applications for setting aside ex parte decree under Order IX Rule 9 or for FAO.15/09 3 restoration of matters dismissed for default invoking Order IX Rule 9, the courts have to adopt a pragmatic approach and reasonable and acceptable explanation would always pave way for adjudication of the disputes on merits. In the case in hand, the defendant, an elderly lady, had denied the plaint claim. She had filed a written statement taking that specific stand. It is also pointed out that even application for adjournment was filed stating that she is unwell and is in Trivandrum. With her evidence on record as PW1 in support of the application to set aside the ex parte decree, corroborated by the evidence of PW2, the doctor who issued Ext.A1, we are of the view that the court below acted illegally in refusing to set aside the ex parte decree. The credibility of PW2 is not legally impeached. Even if it is that he is the friend of the son of the defendant, his competence as an Orthopedist and the fact that he FAO.15/09 4 was working as the Assistant Professor in the Orthopedic Department in the Medical College hospital, Trivandrum are not challenged. Under such circumstances, the preponderance of probabilities lies in favour of accepting the version of the defendant appellant in support of the application to set aside the ex parte decree. For the aforesaid reasons, this appeal is allowed, setting aside the impugned oder. I.A.1253/07 in O.S.170/04 of the Sub Court, Ottappalam will stand allowed and the parties will appear before the court below on the 13th of January, 2011. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- P.BHAVADASAN, Judge. kkb.8/12.