IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA 1931 FAO.No. 305 of 2009 -------------------------------- AGAINST THE ORDER DATED 30/09/2009 IN IA.4377/08 IN OS.193/2006 of PRINCIPAL SUB COURT,KOLLAM .................... APPELLANT/PETITIONER/1ST DEFENDANT: ---------------------------------------------------------------------- RAJASEKHARAN NAIR, NARAKATHARA VEEDU, VADAKKUMMURI, POTHAPPALLY, KUMARAPURAM VILLAGE, KARTHIKAPPALLY, ALAPPUZHA. BY ADV. SRI.S.SANTHOSH KUMAR SMT.P.LISSY JOSE. RESPONDENTS / RESPONDENTS / PLAINTIFF & SECOND DEFENDANT: ------------------------------------------------------------------------------------------------------------------ 1. SREEDEVI @ SREEDEVI AMMA, B.S.N.L. TELEPHONE QUARTERS, PADA NORTH, KARUNGAPPALLY, FROM RESHMI BHAVAN, S.V MARKET.P.O, KOZHIKODE MEKKU, KARUNAGAPPALLY. 2. SREEDEVI @ CHEMBAKAVALLY THAMPURATTI, CHIRATTAPURATHU ELLAM, PADINJARENADA, AMBALAPUZHA, ALAPPUZHA. ADV. SRI.M.R.HARIRAJ FOR R1 SRI.P.A.KUMARAN FOR R1 SRI.SURAJ.S FOR R1 SMT.VINEETHA B. FOR R1 SRI.NIRMAL V NAIR FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 19/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & M.L.JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O.No.305 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of January 2010 JUDGMENT Basheer, J. Appellant is defendant No.1 in a suit for recovery of money. He was absent on the day when the suit was taken up for trial. Consequently, he was set ex-parte and the court below proceeded to pass an ex-parte decree against him and his co-defendant. 2. Later, appellant preferred an application under Order 9 Rule 13 of the Code of Civil Procedure to set aside the ex parte decree contending that he was prevented from attending the court on the crucial day, since he was away in Chennai. More importantly, he was advised rest because of his heart ailment. However, the court below refused to believe the appellant and consequently dismissed the application. Hence, this appeal. 3. We have heard learned counsel for the appellant and respondent/plaintiff. We have also perused the materials available on record. 4. In the peculiar facts and circumstances of the case, we are unable to agree with the view taken by the court below. In our view, the appellant ought to have been given an opportunity to defend the suit. We are satisfied that the order under challenge is liable to be set aside. We do so; but of course on terms. F.A.O.No.305 OF 2009 :: 2 :: 5. The order under challenge shall be set aside on condition that the appellant pays a sum of Rs.5,000/- as cost to the respondent/plaintiff within two weeks from today. If the appellant fails to pay the said sum of Rs.5,000/- within the time stipulated, this appeal will stand dismissed. 6. The court below shall dispose of the suit expeditiously after giving sufficient opportunity to the plaintiff and defendants in accordance with law. Appeal is disposed of in the above terms. A.K.BASHEER, JUDGE M.L.JOSEPH FRANCIS, JUDGE jes