IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 16TH JULY 2008 / 25TH ASHADHA 1930 FAO.No. 145 of 2008() --------------------- AGAINST THE ORDER DATED 10/04/2008 IN IA. 2292 /2007 IN OS.109/2002 of SUB COURT, OTTAPPALAM .................... APPELLANT/PETITIONER/2ND DEFENDANT ----------------------------------- RADHAKRISHNAN, S/O. LATE KRISHNA PANIKERR, AGED 38, VANNAMPATTA KALARIKKAL, VANNAMPATTA AMSOM AND DESOM, OTTAPPALAM TALUK, PALAKKAD DT. BY ADV. SRI.BINOY VASUDEVAN SRI.R.MANIKANTAN RESPONDENTS: RESPONDENTS/RESPONDENTS ------------------------------------ 1. SETHU MADHAVAN, S/O. LATE KRISHNA PANICKER, ASISH NIVAS, VANNAMPATTA KALARIKKAL, KANNIAMPURAM AMSOM, OTTAPALAM TALUK. 2. GANGADHARAN, S/O. LATE KRISHNA PANIKER, ASISH NIVAS, VANNAMPATTA KARIKKAL, KANNIAMPURAM AMSOM AND DESOM, OTTAPALAM TALUK. 3. PRASANNAKUMARY, D/O. LATE KRISHNA PANIKER, ASISH NIVAS, VANNAMPATTA KALARIKKAL, KANNIAMPURAM AMSOM AND DESOM, OTTAPALAM TALUK. 4. DHANALAKSHMI, D/O. LATE KRISHNA PANIKER, ASISH NIVAS, VANNAMPATTA KALARIKKAL, KANNIAMPURAM AMSOM AND DESOM, OTTAPALAM TALUK. 5. KUNJULAKSHMI, D/O. KRISHNA PANIKER, ASISH NIVAS, VANNAMPATTA KALARIKKAL, KANNIAMPURAM AMSOM AND DESOM, OTTAPALAM TALUK. 6. VIJAYARAGHAVA PANIKER, S/O. LATE KRISHNA PANIKER, ASISH NIVAS, VANNAMPATTA KALARIKKAL, KANNIAMPURAM AMSOM AND DESOM, OTTAPALAM TALUK. BY ADV. SRI.E.R.VENKATESWARAN FOR R1 SRI.R.SREEHARI FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 16/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: F.A.O.No. 145 of 2008() ORDER ON I.A.NO.2266/2008 IN F.A.O.NO.145/2008 DISMISSED. SD/-P.R.RAMAN, JUDGE SD/-T.R.RAMACHANDRAN NAIR, JUDGE 16/07/2008 \\TRUE COPY// P.A to Judge P.R.RAMAN & T.R.RAMACHANDRAN NAIR, JJ. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ F.A.O.No.145 of 2008 ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 16th day of July, 2008 J U D G M E N T RAMAN, J. This is an appeal against an order dated 10/04/2008, in I.A.No.2292/2007 in O.S.No.109/2002 of the Sub Court, Ottapalam. I.A.No.2292/2007 was filed under Order IX Rule 13 of the Code of Civil Procedure for setting aside the judgment and decree which was passed against him ex parte. The suit is one for partition. The second defendant who is the petitioner herein resisted the partition by filing a written statement by raising a will in his favour. Of course, the will, it seems, was not produced before the court below. The court below, for the absence of the second defendant on the appointed day declared him ex parte. The appellant thereupon filed an application as I.A.No.2173/2007 for setting aside the ex parte order, which was dismissed. Later he filed the present application, I.A.No.2292/2007 for setting aside the ex parte decree. The court below held that the reason put forth by the appellant for his absence that on the list day he could not come to court because his wife's brother was hospitalised was not supported by producing any materials. The appellant submits that he F.A.O.No.145 of 2008 -:2:- produced a copy of the discharge card along with his application filed before the court below in I.A.No.2173/2007. The learned counsel appearing for the respondents points out that an application under Order IX Rule 13 of the C.P.C filed by him earlier was dismissed by the court below and against which he has not preferred any further appeal. But we find that the court below had passed an order dismissing the application to set aside the ex parte order and subsequently an ex parte decree was also passed. He has challenged ex parte decree by filing this appeal and, incidently, he has challenged the order passed in I.A.No.2173/2007 also. Therefore, if the dismissal of the application I.A.No.2173/2007 is found to be erroneous, naturally there was no occasion for the court below to pass ex parte decree against the appellants. In that view of the matter, we heard both sides on merit. The fact remains that the appellant's brother-in-law was hospitalised on the appointed day which is supported by a medical discharge card produced along with the application filed as I.A.No.2173/2007. According to the appellant no opportunity was given to adduce further evidence in the matter. Subsequently, his brother-in-law passed away. These facts are not disputed by filing any counter affidavit. Normally in the absence of the denial of the averments in the affidavit filed by appellant herein, the court below was not justified in dismissing the application insisting for further proof. True, if the respondent had F.A.O.No.145 of 2008 -:3:- denied the allegations made, necessarily the averments made in the affidavit have to be supported by other independent evidence. But in this case even the discharge card is produced and there was no dispute regarding the genuineness of the documents so produced. It is also not a case where the appellant had committed any default on any previous occasion. Being a partition suit contested by the second defendant, for his non appearance on the sole day for the reasons stated above, ought to have been viewed leniently and the ex parte order set aside. 2. In the facts and circumstances of the case, we set aside the order in I.A.No.2173/2007 as also the decree passed and impugned in this appeal. The matter is remanded to the court below for fresh consideration. Being a suit of the year 2002, the same be disposed of expeditiously, after affording an opportunity to hear both sides. The parties shall appear before the court below on 11/08/2008. F.A.O is allowed of as above. P.R.RAMAN, Judge T.R.RAMACHANDRAN NAIR, Judge ms