IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 23RD JUNE 2011 / 2ND ASHADHA 1933 FAO.No. 43 of 2010() -------------------- AGAINST THE ORDER DATED 13/11/2009 IN IA.1804/2009 IN OS.73/2007 of PRINCIPAL SUB COURT,KOLLAM .................... APPELLANT/PETITIONER/DEFENDANT ---------------------------------------------------------- JANARDHANAN PILLAI REGHUNATHAN PILLAI, KANNEL VADAKKATHIL VEEDU, AKKALBHAGOM MURI, PANMANA VILLAGE, KARUNAGAPPALLY TALUK. BY ADVS. SRI.ASP.KURUP SRI.SADCHITH.P.KURUP RESPONDENT(S): RRESPONDENT/PLAINTIFF ------------------------------------------------------------------ MADHAVIKUTTY REMADEVI, RESIDING AT NAZAR MANZIL (IST FLOOR), ALUMKADAVU.P.O, KARUNAGAPPALLY. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 23/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ----------------------------------- F.A.O.No.43 OF 2010 ------------------------------------ Dated this the 23rd day of June, 2011 JUDGMENT Thottathil B.Radhakrishnan,J. 1.This appeal was admitted to file on 1.3.2010 and it was ordered to be posted on 15.3.2010. Notice was served by speed post showing hearing date on 15.3.2010. The postal acknowledgment regarding such notice has not been returned. The appeal is filed showing the address of the appellant as shown in the plaint instituted by her. The appellant defendant has thus shown that notice was taken out in the proper address of the plaintiff, however, that the acknowledgment has not been returned. Hence, we order that notice has been duly served on the respondent. 2.The appellant, defendant before the court below, failed to appear before that court on 7.3.2009, the day on which the FAO.43/10 2 case stood posted for trial. The suit was decreed ex parte. He filed I.A.1804/09 seeking that the ex parte decree be set aside. He pleaded that he was ill and was under treatment with the Taluk Headquarters Hospital, Karunagappally and he came to know of the ex parte decree only on 4.4.2009 when he obtained communication from his counsel. With these materials, he produced a medical certificate before the court below. We are of the view that the court below has taken too rigid an approach which appears to be narrow, resulting in refusal of justice. The credibility of the medical certificate was challenged by the plaintiff. That may be true. Yet, on the totality of the facts and circumstances, the court below ought to have granted the defendant an opportunity to contest the suit which is one for recovery of an amount of Rs.5,80,000/- stated to be on a bounced cheque. The plaint claim is more than Rs.6 lakhs. We are of the view that the court below ought to have granted the application at least on terms. FAO.43/10 3 3.In the result, the impugned order is set aside. I.A.1804/09 in O.S.73/07 of the Principal Sub Court, Kollam is allowed on condition that the appellant will furnish security to the satisfaction of the court below for the plaint amount within a period of 45 days from today. If there is any property under attachment, the said item could also be offered as security, subject to the satisfaction of the court below. The parties are directed to mark their appearance before the court below on 1.8.2011 to report compliance of the aforesaid condition. Upon the court below being satisfied of the condition as complied with, it will proceed to decide the matter and if the plaintiff is not represented, notice will be issued to her at the cost of the defendant for appearance. The appeal is ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.24/6.