IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 7TH NOVEMBER 2008 / 16TH KARTHIKA 1930 FAO.No. 167 of 2008() --------------------- AGAINST THE ORDER DATED 09/04/2008 IN IA.1738/2007 IN OS.51/2002 of SUB COURT, OTTAPPALAM .................... (S): APPELLANTS/PETITIONERS/DEFENDANTS ----------------------------------------------------- 1. AHAMMED ASHRAF, S/O.CHEKKU, PULLATH VEEDU, ARAKKURUSSY, MANNARKKAD. 2. ABEED, S/O.AHAMMED ASHRAF, S/O.AHAMMED ASHRA, DO. DO. 3. FATHIMA, W/O.AHAMMED ASHRAF, DO. DO. BY ADV. SMT.P.K.RADHIKA RESPONDENT(S): RESPONDENTS/PLAINTIFFS ------------------------------------- 1. THOMAS GEORGE, S/O.NILAVARAYATH @ KANNIYILLATH GEORGE, ARAKKURUSSY AMSOM DESOM, MANNARKKAD. 2. SAROJINI AMMA.K.M., W/O.KUNJUNNI NAIR, AMARAVATHY, ARAKKURUSSY AMSOM DESOM, MANNARKKADU. ADV. SRI.G.SREEKUMAR (CHELUR) FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 07/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN IA 2721/08 & 4263/08 DISMISSED. 7/11/2008 SD/- P.R. RAMAN, JUDGE. SD/- T.R. RAMACHANDRAN NAIR, JUDGE. // TRUE COPY // P.S. TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No.167 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of November, 2008. JUDGMENT Raman, J. Defendants are the appellants. The suit O.S.No.51/2002 was filed by the respondents herein as plaintiffs for perpetual injunction as also for damages. When the matter was posted for evidence, the defendants' counsel was absent. Though the first defendant was present, he was not ready to examine the witness. In the circumstances, the defendants were declared ex-parte and based on the proof affidavit, the suit was decreed and granted a permanent prohibitory injunction against the defendants from trespassing into the plaint schedule property and committing any act of waste thereon. However, the relief of damages was disallowed stating that it is not proved. As against the ex-parte decree passed against the appellants, they moved I.A.No.1738/2008 under Order IX Rule 9 of the C.P.C. That was dismissed by the court below which is impugned in this appeal. 2. We have heard learned counsel on both sides. On a perusal of the order impugned in this appeal, we find that the court below justified its FAO 167/2008 -2- action in declaring the appellants ex-parte. But the appellants had specificall pleaded the circumstances under which they were unable to examine the wit esses and it is further pointed out that the appellants were present as reco ded by the court below, but only their counsel was absent. Therefore, mer y for the absence of the counsel, the court below ought not have declared t em ex-parte. This aspect of the matter, however, was not considered by t e court below. Learned counsel appearing for the respondents/pla ntiffs in such circumstances did not seriously oppose the prayer for sett ng aside the ex-parte decree. However, he prayed that in case the decree is s t aside, it may be set aside in toto, so that both sides will get opportunity to dduce evidence in support of their case. 3. In the circumstances, we set aside the decree passed by the court below as also the order impugned in this appeal as agreed by the learned counsel on both sides. The suit will stand restored to file. Both sides are at liberty to adduce evidence in support of their respective pleas. The parties may appear before the court below on 9.12.2008. The appeal is disposed of in the above terms. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/