IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 FAO.No. 18 of 2010() -------------------- AGAINST THE ORDER DATED IN IA.936/2007 IN OS.64/2002 of SUB COURT, CHERTHALA .................... APPELLANTS/RESPONDENTS/DEFENDANTS: -------------------- 1. DINESAN AGED 49 YEARS, S/O.PADMANABHAN, RESIDING AT SANKARA BHAVAN, FROM CHANNAMKUNNEL, VALAMANGALAM MURI, THURAVOOR SOUTH VILLAGE. 2. GEETHA, W/O.DINESAN, RESIDING AT SANKARA BHAVAN, FROM CHANNAMKUNNERL, VALAMANGALAM MURI, THURAVOOR SOUTH VILLAGE. BY ADV. SRI.T.K.PANKAJASHAN PILLAI SRI.SAJI PANKAJAKSHAN SRI.A.S.SASIDHARAN RESPONDENT/RESPONDENT/PLAINTIFF: --------------- VISWAMBHARAN, PUTHENTHARA, VALAMANGALAM VADAKKUM MURI, THURAVOOR SOUTH VILLAGE. ADV. DR.V.N.SANKARJEE THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 17/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- F.A.O. No.18 of 2010 ---------------------------------- Dated this the 17th day of February, 2010 J U D G M E N T ---------------------- Pius C.Kuriakose,J. Under challenge in this appeal is order of the learned Subordinate Judge dismissing an application filed by the appellant for setting aside a decree which was passed against him exparte. The suit was for specific performance of a contract for sale and the suit was decreed exparte as prayed for. Learned Subordinate Judge was not impressed by the causes stated by the appellant for his non-appearance on the day the suit was listed for trial. Learned Subordinate Judge noticed that on 3 previous occasions the appellant was not present when the case was listed for trial and exparte decree has to be passed against him. Eventhough application was filed within 30 days, the court thought that the appellant was not successful showing that he was prevented by sufficient cause in appearing before the court on the date of listing for trial. 2. We have heard submissions of Sri.T.K. F.A.O.18/2010 2 Pankajakshan Pillai, learned counsel for appellants and those of Dr.V.N. Sankarjee, learned counsel for the respondent. Sri.Pankajakshan Pillai would submit that it is true that on 3 previous occasions exparte decrees were passed against the appellant. But on valid reasons the trial court or this court would set aside those decrees and the fact that on previous occasions the appellant was set exparte is not to be taken as a reason for declining relief in the present petition. The present petition had to be decided on its own merits. According to the counsel sufficient opportunity should be afforded to the appellant for substantiating the valid contentions that has been raised in the appeal. He submitted that the property in question is an extent of 32 cents having frontage of NH-47. 3. All the submissions of Sri.Pankajakshan Pillai were resisted by Dr.Sankarjee. He submitted that in the first instance the application filed by the appellant for setting aside the exparte decree was allowed unconditionally. On the 2nd and 3rd instances the application was allowed on imposing cost of Rs.2000/- and Rs.10,000/- respectively. Learned counsel for respondent expressed strong exception to showing indulgence towards appellant. The respondent is F.A.O.18/2010 3 an octogenarian and is reaching the twilight days of his life. He should be allowed to enjoy the fruits of the decree. 3. We have anxiously considered the rival submissions. We are agreeing with the learned counsel for the respondent that there was negligence on the part of the appellant in pursuing the defence that he had taken in the suit. At the same time we notice that not even once the suit was tried by the court below on the merits of the issues. Hence we are inclined to show indulgence towards the appellant for the last time, however, only on very stringent conditions. We set aside the order under appeal and allow I.A.936/2007 subject to the following conditions: (i). Appellants shall pay a sum of Rs.15,000/- to the respondent either directly or through their Advocate in this court within three weeks from today. (ii). Appellants shall pay a further amount of Rs.2500/- to the Kerala High Court Legal Services Committee within the same time limit. Receipts against payment of both these amounts will be produced before the court below. The order setting aside the impugned order will become operative if payments are made in time. Once the learned Subordinate Judge notices F.A.O.18/2010 4 receipts against those payments on time the suit will be included in the earliest available special list and will be tried on a day today basis and a judgment on merits will be passed in the suit. The F.A.O. is allowed subject to the above conditions. The learned Subordinate Judge will make every endeavour to finally dispose of the suit within a maximum period of one month of the commencement of the trial pursuant to this judgment. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb