IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 RFA.No. 421 of 2007() --------------------- OS.213/1991 of SUB COURT, SULTHAN BATHERY .................... APPELLANT/DEFENDANT: ------------------------------- VINODKUMAR, S/O.RAMU(LATE),AGED 46 YEARS,PROPRIETOR, RAMCO ENTERPRISES, MAPPADY, KOTTAPPADY AMSOM AND DESOM, VYTHIRI TALUK, WAYANAD DISTRICT. BY ADV. SRI.M.RAMESH CHANDER SMT.K.A.SANJEETHA RESPONDENT: PLAINTIFF: -------------------------- THOMAS BOSE, AGED 45 YEARS, S/O.REV.FR.ELIAS NANGALAM, MANGALATH MANDIR, MEPPADY, KOTTAPPADY AMSOM AND DESOM, VYTHIRI TALUK, WAYANAD DISTRICT. ADV. SRI.P.K.RAMKUMAR THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.3080 OF 2007 IN R.F.A.NO.421 OF 2007 DISMISSED. 23.9.2008 SD/- PIUS C.KURIAKOSE, JUDGE. PIUS C. KURIAKOSE,J. - - - - - - - - - - - - - - - - - - - - - - - - - R.F.A.No.421 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 23rd September, 2008 JUDGMENT The defendant in a suit for money is the appellant. The suit was decreed in the first instance and on appeal preferred by the present appellant, the suit was remanded to the trial court giving opportunity to both sides to adduce whatever evidence they have at their command. On the day the suit was posted for trial in special list, the appellant-defendant was not ready. He filed I.A.No.799/05 seeking an adjournment on the ground that he was laid up due to viral hepatitis and that he had been advised rest for the period from 20.9.2005 to 15.10.2005. But no medical certificate was produced by him along with the I.A. The learned Subordinate Judge dismissed the I.A. noticing that the averments in the I.A. were not supported by any medical certificate and observing that adjournment of the case listed for trial in special list will upset the very list system which was being strictly followed in the court. It was also observed by the learned Judge that nothing prevented the appellant from authorising somebody else to give evidence on his behalf. The learned Subordinate Judge after dismissing the I.A. would rely on the claim affidavit and other items of evidence which was produced by the RFA No.421/07 - 2 - respondent-plaintiff and would proceed to pass a positive decree in favour of the respondent. The ground which is prominently raised in this appeal is that the learned Subordinate Judge should have allowed I.A.No.799/05 and granted time to the appellant for adducing evidence. 2. I have heard the submissions of Smt.K.A.Sanjeetha, learned counsel for the appellant and Mr. P.K.Ramkumar, learned counsel for the respondent. 3. Smt.Sanjeetha would place before me a copy of the order passed by the learned Subordinate Judge in I.A.No.799/05. She also produced before me a copy of the medical certificate dated 20.9.2005 issued by Dr.Ravi Vadakketathu, Civil Surgeon, Meppadi, Wayanad as well as copy of the medical prescription issued by that Doctor to the appellant. The medical certificate and the prescription prima facie support the claim of the appellant that he had a genuine reason for his absence on the fateful day before the court below (1.10.2005). But at the same time counsel was not in a position to explain as to why the appellant did not produce the medical certificate before the trial court along with the application for adjournment. Moreover as rightly submitted by Mr.Ramkumar, this was a case where the suit RFA No.421/07 - 3 - had been decreed once and the parties were meeting trial pursuant to an order of remand passed by this court. That being the position, the appellant was expected to be more vigilant at least in the matter of filing proper application for adjournment. Though the judgment under appeal purports to be on merits, there is no justification to deny opportunity to the appellant on the ground that the appellant was absent and was not able to give any evidence pursuant to the remand order passed by this court. Under these circumstances, I am inclined to afford one more opportunity to the appellant for adducing whatever evidence the appellant has at his command. But I am inclined to do so only by imposing terms. 4. The result is that the judgment and decree under appeal will stand set aside and the suit O.S.No.213/91 will go back to the trial court for fresh consideration on condition that the appellant will pay a sum of Rs.2000/- by way of cost to the respondent either directly or through his counsel in this court within one month from today. Once cost is paid and a memo is filed before this court to that effect, the order of remand will become operative. Once the order of remand becomes operative, the court below will post the suit in the earliest available special list and dispose of the suit on a day-to-day basis RFA No.421/07 - 4 - affording opportunities to both sides to adduce whatever evidence they have. Further trial will be conducted and revised judgment will be passed pursuant to this order of remand within three months of the date parties entering appearance before the court below. Refund the full court fee paid on the appeal memorandum to the counsel for the appellant. srd PIUS C.KURIAKOSE, JUDGE