IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 FAO.No. 326 of 2007 ---------------- (AGAINST THE ORDER IN IA.630/07 IN OS.67/2004 of SUB COURT, OTTAPPALAM ) APPELLANT/PETITIONER/1ST DEFENDANT ------------------------------------------------------ JANAKI AMMA, W/O. LATE SEKHARAN NAIR, OTTUPARA VEEDU, VELLOTTUKURUSSI DESOM, CHERUPULASSERY AMSOM, NOW RESIDING AT CAMP ROAD, TAMBARAM, CHENNAI. BY ADV. SRI.G.GOPAKUMAR (CHERTHALA) RESPONDENTS/ RESPONDENTS/PLAINTIFFS ------------------------------------------------------------------ 1. NANIKUTTY AMMA, W/O. LATE ACHUTHAN NAIR, MANIYATH HOUSE, NEAR I.T.C., MUNDUR, PALAKKAD. 2. RADHAKRISHNAN, S/O. LATE ACHUTHAN NAIR, COMPANY EMPLOYEE, MANIYATH HOUSE, NEAR I.T.C., MUNDUR, PALAKKAD. BY ADV. SRI.SANTHEEP ANKARATH ADV. SMT.PRIYA VIJAYAN THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 23/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & K.T. SANKARAN, JJ. ........................................................................ F.A.O. No. 326 OF 2007 ......................................................................... Dated this the 23rd September, 2008 J U D G M E N T K.T. Sankaran, J: The first defendant in O.S.No. 67 of 2004 on the file of the court of the Subordinate Judge, Ottappalam was set ex parte. An ex parte decree was passed on 12.02.2007. The appellant/first defendant filed an application under Order IX Rule 13 of the Code of Civil Procedure. The court below dismissed the application by the order impugned. 2. The appellant/first defendant had filed a separate written statement. Her son, the second defendant also had filed a written statement. When the suit was posted for trial on 02.02.2007, the appellant filed an application to remove the case from the special list on the ground that she was laid up due to old age illness at Chennai. The court below adjourned the case to 06.02.2007. On that date also, the appellant was absent. The suit was proceeded with. The second defendant participated in the trial and the plaintiff was cross examined. Learned counsel for the first defendant/appellant reported no instruction. 2. The court below dismissed the application filed under Order IX Rule 13 of the Code of Civil Procedure mainly on three grounds: F.A.O. No. 326 OF 2007 2 i) The medical certificate produced by the petitioner was not properly proved by examining the medical officer who issued the medical certificate. ii) The son of the appellant cross examined the plaintiff and actively participated in the trial of the case . The contentions put forward in the written statement of the first defendant/appellant and that filed by the second defendant are identical. iii) There is no satisfactory explanation by the appellant with regard to her absence on the date when the case was posted for trial. 3. It is true that the medical certificate was not proved in accordance with law. It is also an admitted fact that the contentions put forward by the appellant/first defendant as well as the second defendant are identical. The second defendant was present in court and his counsel had cross examined the plaintiff. At the same time, considering the advanced age of the appellant/first defendant and other attendant circumstances, the court below could have afforded an opportunity to the appellant to adduce evidence and to cross examine the plaintiff and witnesses, if any. Though it cannot be said that the appellant has proved beyond doubt that he was prevented by sufficient cause from appearing when the case was posted for hearing, a liberal approach in the matter is needed in the facts and circumstances of the case. We are of the view that the application for setting aside the ex parte decree can be allowed on terms.. Accordingly, the appeal is allowed. The order impugned is set aside.. F.A.O. No. 326 OF 2007 3 I.A.No. 630 of 2007 is allowed on condition that the appellant shall pay a sum of Rs. 3,000/- (Rupees three thousand only ) as costs to the plaintiff within a period of three weeks. The parties shall appear before the court below on 30.10.2008. It is agreed that no further adjournment will be sought by the appellant. The court below shall not adjourn the case to any other date on the request of the appellant. The appellant will be entitled to cross examine the plaintiff and the witnesses on the side of the plaintiff, if any. The appellant will also be entitled to adduce evidence and to examine the witnesses shown in witness list, if any, already filed. It is made clear that the appellant will not be entitled to file a fresh witness list and to examine them. If the appellant fails to pay the costs within the aforesaid period, the F.A.O. will stand dismissed. KURIAN JOSEPH, JUDGE. K.T. SANKARAN, JUDGE. lk