IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 FAO.No.282 of 2009 ----------------------- AGAINST THE ORDER DATED 07/08/2009 IN IA 3600/2008 IN OS.381/2002 of ADDL.SUB COURT,KOTTAYAM .................... APPELLANT/PETITIONER IN IA/DEFENDANT ------------------------------------------------ K.G. SUNIL DUTT, AGED 51 YEARS, S/O. LATE, K.C. GANGAHARAN, KOMMADATH HOUSE, UDAYA ROAD, THYKOODAM, KOCHI. BY ADV. SRI.M.V.MATHEW RESPONDENT(S)/COUNTER PETITIONERS/PLAINTIFFS: ------------------------------------------------------------- 1. LEELAMMA VARGHESE, W/O. REV. FR. VARGHESE KOLASSERIL HOUSE, VELLOOR P.O., KOTTAYAM DIST NOW RESIDING AT 303 B. JALARAM PALACE, BHATTER ROAD, NEAR ANKUR APPARTMENT SURAT 2. DENNIS, VARGHESE, S/O LEELAMMA VARGHESE KOLASSERIL HOUSE, VELLOOR P.O., KOTTAYAM DIST, NOW RESIDING AT 303 B. JALARAM PALACE, BHATTER ROAD, NEAR ANKUR, APPARTMENT SURAT. ADV. SRI.ALEXANDER PETER FOR R1 & 2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 22/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ F. A. O. No.282 of 2009 ------------------------------------------------ Dated this the 22nd day of February, 2010 JUDGMENT Pius C. Kuriakose, J Under challenge in this FAO is the order of the Subordinate Judge's Court, Kottayam dismissing an application filed by the appellant for setting aside the ex parte decree which was passed against him. The appellant relied on Ext.A1 medical certificate issued by a Doctor in Government service. The evidence on the side of the appellant consisted of his own oral testimony as PW1 and Ext.A1. There was no counter evidence adduced on the side of the respondent. However, the learned Subordinate Judge found F. A. O. No.282 of 2009 -2- that there was gross negligence on the part of the appellant in pursing the defence he had raised to the plaint claim which was for an amount of Rs.13 lakhs. Ext.A1 certificate also did not impress the learned Subordinate Judge much. It was found that Ext.A1 at best only advises the appellant rest for a period of one week and that the same was not sufficient explanation for the appellant's inability to be present before the court on the day the suit stood posted for trial. The submissions of Mr.M.V.Mathew, the learned counsel for the appellant notwithstanding, we are not persuaded to hold that the finding of the learned Subordinate Judge that the explanation offered by the appellant for his absence on the day of the suit stood posted for trial is not convincing, is wrong. F. A. O. No.282 of 2009 -3- 2. Sri.Alexander Peter, the learned counsel for the respondent was able to support the impugned order not only on the reasons stated in that order, but also on the basis of the previous conduct of the appellant in relation to the defence that he has raised in the suit. 3. At the same time, we notice that the issues raised in the suit were never adjudicated on their merits. We also notice that the application to have the ex parte decree set aside was filed within the statutory period of thirty days. The policy of law is that as far as possible causes should be allowed to be adjudicated on merits rather than decided on technicalities. At the same time, we are not inclined to grant relief to the appellant without imposing very stringent terms on the F. A. O. No.282 of 2009 -4- appellant. We take into account the grievance of the respondent that even after the lapse of about eight years the respondent has not been able to reliase the amounts which are due to him as claimed in the plaint. 4. Result of the above discussion is that the impugned order will stand set aside and I.A.3600/08 will stand allowed subject to the following conditions:- 1) The appellant will pay a sum of Rs.15,000/- as cost to the respondent either directly or through their Advocate in this court within three weeks from today. 2) The appellant will pay a further amount of Rs.5,000/- to the Kerala High Court Legal Services Committee within the same time limit. Receipts F. A. O. No.282 of 2009 -5- against payments of both the amounts will be produced by the appellant before the court below. The court below upon noticing payment on time will take up O.S.381/02 and post the suit in the earliest available special list for trial. Once the suit is listed for trial, trial will be taken up on a day to day basis and suit will be disposed of within a month of commencement of trial. We make it clear that if amounts as ordered above are not paid on time, the impugned order will stand confirmed and the FAO will stand dismissed. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-