IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 12TH OCTOBER 2009 / 20TH ASWINA 1931 RFA.No. 545 of 2008 ------------------------------------ (AGAINST THE JUDGMENT & DECREE IN OS.63/2005 of SUB COURT,KOCHI) .................... APPELLANT/1ST DEFENDANT ------------------------------------------- THANKAMMA, W/O. GOPALAN, KANNAPPASSERRY HOUSE, ELAMKUNNAPPUZHA MURI, ELAMKUNNAPPUZHA VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.V.PHILIP MATHEWS RESPONDENT(S)/PLAINTIFF & 2ND DEFENDANT -------------------------------------------------------------------- 1. SREENARAYANA SAHAYA MARANAVASYA SANGHAM, ELAMKUNNAPPUZHA VILLAGE, KOCHI TALUK, REP.BY PRESENT RESIDENT, SRI.T.K.SANKARAN, S/O. KUMARAN, THALENAVELIYAKATH HOUSE, ELAMKUNNAPPUZHA MURI. 2. SHIJI, W/O. RATHEESH KUMAR, RESIDING AT : KANNAPPASSERRY HOUSE, ELAMKUNNAPUZHA MURI ELAMKUNNAPPUZHA VILLAGE, KOCHI ADV. SRI.K.K.JOHN FOR R1 SRI.T.R.NILESH FOR R1 SRI.GIBI.C.GEORGE FOR R2 THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 12/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. -------------------------------------------------- R.F.A.NO. 545 OF 2008 A --------------------------------------------------- Dated this the 12th October, 2009 JUDGMENT K.M. Joseph, J. Appellant is the first defendant. The Suit was one for specific performance, filed by the first respondent/plaintiff, of an agreement to sell. The second respondent is the daughter-in- law of the appellant. The plaintiff examined PW1. He was cross examined. Appellant's son was examined as DW1. Thereafter, it is the case of the appellant that the appellant and second respondent filed Application for recalling PW1. A Counter Affidavit was filed. It was heard and dismissed. Thereafter, the Suit was posted for hearing on 15.1.2007 and and it was adjourned and finally heard on 24.1.2007. It is the appellant's further case that the appellant's counsel argued the matter and relying on various decisions and after hearing, the case was adjourned. It is her further case that the purpose for R.F.A.NO.545/08 2 which it was adjourned was also not clear to the appellant and the counsel. It is stated that the appellant's counsel engaged an Advocate clerk and the appellant's counsel assured his counsel that he will contact the Advocate clerk and inform him the next posting date. Appellant is a widow aged 76 years and is suffering from various ailments. It is the further case that the appellant is not well placed and was laid up for nearly one month from 29.1.2007. It is understood that the case was posted to 28.2.2007 and the Advocate clerk attached to the counsel's office went to receive the Judgment. The Presiding Officer was on leave on that day and there was no sitting. Enquiry revealed that the Judge was on leave for one month. It is further stated that the case was adjourned. On 11.4.2007, the judgment was delivered setting the appellant and the second respondent as ex parte, after cross-examination of the plaintiff and examination of DW1. The appellant filed an I.A. seeking to set aside the ex parte decree and for condoning delay which was dismissed against which F.A.O.No.180/08 is filed which is R.F.A.NO.545/08 3 pending. 2. We heard the learned counsel for the appellant and the learned counsel appearing on behalf of the first respondent. There is also appearance for the second respondent. 3. Learned counsel for the appellant would contend that this is a case where the appellant has got a case on merits. He would contend that actually the matter, as already stated, after examination of the witness of the plaintiff who was cross- examined by the appellant and the appellant examined DW1, was posted for arguments. The matter was argued and the learned Judge has not referred to these aspects, it is contended. 4. Learned counsel for the first respondent would contend that actually earlier also, the appellant was set ex parte and this is the third time. He further points out that the decree passed was put to execution and the sale deed was executed through court and the first respondent has been put in possession and if this Court is inclined to allow this Appeal and remit it back, restitution may not be ordered as of now. R.F.A.NO.545/08 4 5. Having considered the facts and circumstances of the case, we are inclined to think that an opportunity should be given to the appellant to have a decision on merits. The appellant is a 76 year old widow. It is indisputable that the evidence of the plaintiff was closed. DW1 was examined and apparently the evidence of the appellant was also closed. The matter was to be argued. According to the appellant, the appellant has argued her case also. In such circumstances, we feel that interest of justice would require our interference. However, this cannot be unconditional as it is the third time the Suit stands decreed ex parte. The Appeal will stand allowed and the Judgment and Decree will stand set aside on condition that the appellant will pay a sum of Rs.7,000/= (Rupees Seven Thousand) as costs to the first respondent within a period of one month from today and a memo shall be filed to that effect before this Court within one month from today. We also direct refund of the amount of court fee paid by the appellant in this case. 6. In view of the fact that we are inclined not to order restitution immediately and the question must await the final R.F.A.NO.545/08 5 decision on the matter, we feel that a time frame is to be fixed for disposal after remand. Accordingly, we direct the trial court to dispose of the Suit on or before 31.1.2010. The parties are to appear before the court below on 16.11.2009. It is made clear that if the appellant does not pay the costs as aforesaid, the Appeal will stand dismissed. It is further ordered in the circumstances of the case, that the question of restitution will stand deferred and will depend upon the decision to be taken by the trial court after remand. Sd/= K.M. JOSEPH, JUDGE Sd/= M. L. JOSEPH FRANCIS, JUDGE kbk. In compliance with the direction in the judgment dated 12/10/2009 in R.F.A.545/2008, the appellant's counsel has paid a sum of Rs.7,000/= (Rupees seven thousand only) by way of cost to the counsel for the first respondent, vide memo dated 26/10/2009 (c.f.5139/2009) within the time stipulated. Sd/= Registrar (Judicial)