IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 FAO.No. 279 of 2009() ------------------------------ I.A.NO.658/2008 & I.A.NO.659/2008 IN OS.396/2002 of ADDITIONAL SUB COURT, PALAKKAD .................... APPELALNT(S) /PETITIONER/DEFENDANT: ------------------------------------------------------------ SAHEEDA,W/O.ABUTHALI,MODANKADUVEEDU, MODANKADU STREET,YAKKARA,PALAKKAD. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENT(S): RESPONDENT:PLAINTIFF: --------------------------------------------------------------- MUHAMMED KHANI, S/O.MUTHU ROWTHER,THOTTINGAL ROAD,NOORANI, YAKKARA,PALAKKAD. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 03/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ F.A.O.No.279 of 2009 ---------------------------------------------- Dated, this the 3rd day of December, 2009 J U D G M E N T K.M.Joseph, J. Appellant calls in question the common order passed by the Additional Sub Court, Palakkad in I.A.Nos.658/2008 and 659/2008. The appellant is the defendant. The suit was one for specific performance of an agreement for sale. An exparte decree was passed against the appellant. The appellant, accordingly filed application to set aside the exparte decree. There was 29 days delay in filing the petition to set aside the exparte decree. Accordingly, he filed I.A.658/2008 to condone the delay. Both the petitions stand dismissed by the court below finding that the appellant sought dilatory tactics. Of course, the appellant has produced medical certificate wherein it is mentioned that the appellant is suffering from chronic low back pain due to degeneration change of spine and she is under treatment since 8.12.2007. 2. We heard the learned counsel for the appellant. Though served, there is no representation for the respondent. FAO 279/2009 -2- 3. Learned counsel for the appellant would submit that the appellant essentially has a case on merits. In the circumstances, we take a liberal view, but, the order in favour of the appellant cannot be an unconditional order since we understand that the suit had been decreed exparte earlier also. In the view, we allow the appeal, set aside the impugned order and allow I.A.Nos.658/2008 and 659/2008 filed by the appellant on condition that the appellant will deposit Rs.5,000/- (Rupees five thousand only) as costs to be paid to the respondent within a period of one month before the Court below. The respondent will be free to withdraw the said amount deposited as aforesaid. In case the amount is not deposited by the appellant this appeal will stand dismissed. In case the appellant remits the amount the Additional Sub Court, Palakkad will take up the suit and finally dispose of the same on or before 1.4.2010. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS FAO 279/2009 -3-