IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 20TH DECEMBER 2010 / 29TH AGRAHAYANA 1932 FAO.No. 93 of 2010() ------------------------------ I.A.425/2009 IN OS.221/2006 of PRINCIPAL SUB COURT, KOLLAM .................... APPELLANT/PETITIONER/DEFENDANTS ----------------------------------------------------------- 1. AZARA BAKER, W/O.M. BABU, Y-SHAKH, PUNNATHALA CHERRY, KOLLAM. 2. M. BABU, S/O.M.M. KHAN, Y-SHAKH, PUNNATHALA CHERRY, KOLLAM, REPRESENTED BY POWER OF ATTORNEY HOLDER, SRI.M.M. KHAN. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENTS/COUNTER PETITIONERS/PLAINTIFFS ------------------------------------------------------------------------------ 1. RAMEESA BEEVI, W/O.AHAMMED BASHEER, PUTHENPURACKAL HOUSE, PUNNATHALA CHERRY, KOLLAM. 2. K. AHAMMED BASHEER, S/O.KASIM KUNJU, PUTHENPURACKAL HOUSE, PUNNATHALA CHERRY, KOLLAM. BY ADV. SRI.R.KISHORE, SRI.G.HARIPRASAD, SRI.ARUN BABU. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 20/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs THOTTATHIL B. RADHAKRISHNAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 93 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of December, 2010. JUDGMENT Thottathil B. Radhakrishnan, J, The first defendant is the wife of the second defendant. It appears that they are abroad, the second defendant being employed in the United Arab Emrites. The plaintiffs filed the suit for declaration of title in relation to the property and also seeking documentation. We are not going into the merits, though we have heard learned counsel for the parties touching that aspect also. 2. The father of the first defendant holds a power of attorney of his son-in-law, the second defendant. He has been contesting the suit. On account of his absence on the day on which the case was included in the special list for trial, the suit happened to be decreed ex-parte. The application to set aside the ex-parte decree and the application to condone the delay in making such application stand dismissed. FAO.93/2010. 2 3. We have looked into the affidavit filed in support of the application. The plea of the power of attorney holder of the defendants was that he has a problem of retina detachment and had been under treatment in a hospital. Having regard to the age of the power of attorney holder, we are not inclined to disbelieve his version. There is a fair chance of the plea being bonafide. We accordingly uphold it. In the result, we set aside the impugned order. However, the setting aside of the ex-parte decree has necessarily to be on terms. In the result, we set aside the impugned order and set aside the ex-parte decree in O.S.221 of 2006 on the file of the Principal Sub Court, Kollam on terms that the respondents will be paid an amount of Rs.5,000/- within two months payable to their counsel appearing before this court under proper memo. The parties are directed to appear before the court below on 3.1.2011. We may also record that both the parties appear to be inclined to have the matter FAO.93/2010. 3 settled out of court subject to persuasive request for mediation or other ADR mechanism. The court below will take note of this also. Thottathil B. Radhakrishnan, Judge P. Bhavadasan, Judge sb.