IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 1ST DECEMBER 2009 / 10TH AGRAHAYANA 1931 FAO.No. 226 of 2009(C) --------------------- AGAINST THE ORDER DATED 06/08/2009 IN IA 728/09 IN OS.278/2007 of SUB COURT, PERUMBAVOOR .................... APPELLANT/DEFENDANT --------------------------------------- M.A.BASHEER, AGED 58 YEARS,S/O.ABDU,MUTTATHUCHALIL HOUSE, SOUTH VAZHAKULAM KARA,VAZHAKULAM VILLAGE, KUNNATHUNADU TALUK,ERNAKULAM DISTRICT. BY ADV. SRI.K.SUNILKUMAR SMT.V.A.LAZIDA RESPONDENT(S): PLAINTIFFS ------------------------- 1. SHANAVAS, AGED 26 YEARS,S/O.SALIM, MANNUPARAMBIL HOUSE,KUMMANODU KARA, PATTIMATTOM VILLAGE,KUNNATHUNADU TALUK. 2. RASHEEDU, AGED 39 YEARS,S/O.MOIDEEN, MANNUPARAMBIL HOUSE,KUMMANODU KARA, PATTIMATTOM VILLAGE,KUNNATHUNADU TALUK. 3. RAFEEQUE, AGED 27 YEARS,S/O.NAINAN, KUZHIPPILLY HOUSE,KUMMANODU KARA, PATTIMATTOM VILLAGE,KUNNATHUNADU TALUK. 4. MUNEER, AGED 42 YEARS,S/O.SAIDU, KUTTUVILAKAM HOUSE,KUMMANODU KARA, PATTIMATTOM VILLAGE,KUNNATHUNADU TALUK. 5. ANSAR, AGED 25 YEARS,S/O.MUHAMMED, CHATHANATTU HOUSE,KUMMANODU KARA, PATTIMATTOM VILLAGE,KUNNATHUNADU TALUK. 6. SALIM, AGED 28 YEARS,KUZHIPPILLY HOUSE, KUZHUPPILLY HOUSE,KUMMANODU KARA, PATTIMATTOM VILLAGE,KUNNATHUNADU TALUK. BY ADV. SRI.RAJESH VIJAYAN FOR R1-6 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 01/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A. NO: 3222 OF 2009 IN F.A.O. NO: 226 OF 2009 DISMISSED. SD/- K.M.JOSEPH (JUDGE) SD/- M.L.JOSEPH FRANCIS (JUDGE) 1.12.2009 K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 226 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of December, 2009 JUDGMENT Joseph, J. The appellant challenges the common order passed in IA.Nos. 728 and 729 of 2008 in O.S.No. 278 of 2007. The appellant is the defendant in the suit, which was decreed ex parte. He filed an application to set aside the ex parte order. There was a delay of 338 days in filing the application. Accordingly he filed an application to condone the delay also. Both the applications were considered by the court below and finding that there is no bonafides, dismissed the petitions. 2. Taking a liberal view, we are of the view that a decision will have to be taken in the suit on the merits of the matter. F.A.O. No. 226 of 2009 2 3. Accordingly we allow this appeal and the impugned order is set aside, on condition that the appellant deposits Rs.25,000/- and also pays Rs.3,000/- as cost to the respondent within a period of one month from today. If the amount is so deposited and cost paid, the court below will take up the suit and dispose of the same on or before 31.3.2010. In case the appellant does not pay the amount of Rs.25,000/- or the cost of Rs.3,000/- and produce memo in respect of the cost before this court within a period of one month, the appeal will stand dismissed. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm The appellant has paid Rs. 3,000/- (Rupees three thousand only) as cost to the respondents through their counsel in the lower court as per the direction in the judgment dated 01/12/2009 in FAO 226/2009 within the stipulated period, vide memo dated 05/01/2010. Registrar (Judicial)