IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 2ND MARCH 2009 / 11TH PHALGUNA 1930 FAO.No. 39 of 2009() -------------------- AGAINST THE ORDER DATED 16/12/2008 IN IA 537/08 IN OS.127/2003 of SUB COURT, OTTAPPALAM .................... APPELLANTS/PETITIONERS/DEFENDANTS ----------------------------------------------------- 1. SETHUMADHAVAN, S/O.RAVUNNI KARTHAV RESIDING AT SREEBHAVAN, EZHUVATHALA AMSOM, IRUMBULASSERY DESOM IN OTTAPALAM TALUK, PALAKKAD DISTRICT. 2. M.CHANDRAN,S/O.T.K.KARTHA,"SREE BHAVAN" IRUMBALASSERY DESOM, EZHUVANTHALA AMSOM, OTTAPALAM TALUK, PALAKKAD DISTRICT,REP.BY HIS P/A HOLDER SETHUMADHAVAN, S/O.RAVUNNI KARTHAV, RESIDING AT SREEBHAVAN, EZHUVANTHALA AMSOM, IRUMBULASSERY DESOM IN OTTAPALAM TALUK,PALAKKAD (D BY ADV. SRI.SANTHEEP ANKARATH SRI.V.C.MADHAVANKUTTY RESPONDENT: RESPONDENT/PLAINTIFF ----------------------------------- SANKARANARAYANAN NAIR, S/O.PALAKURUSSI VEETTIL PARUKUTTY AMMA, VELLINEZHI AMSOM, KUTTANASSERI AMSOM IN OTTAPALAM TALUK. ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 02/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.411 OF 2009 IN FAO NO.39 OF 2009 DISMISSED. 2.3.2009 SD/- KURIAN JOSEPH, JUDGE. SD/- SATHEESACHANDRAN, JUDGE. KURIAN JOSEPH & S.S. SATHEESACHANDRAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O.No.39 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 2nd March, 2009 JUDGMENT Satheesachandran,J. The appellants are the defendants in O.S.No.127 of 2003 on the file of the Sub Judge, Ottapalam, in which an ex parte decree was passed against them. The application for setting aside the ex parte decree moved by the appellants under Order 9 Rule 13 C.P.C., after enquiry, was dismissed by the learned Sub Judge. Aggrieved by that order, they have come up with this appeal. 2. We have heard the counsel on both sides. The application for setting aside the decree is vehemently opposed by the learned counsel appearing for the respondent, contending that sufficient cause had not been made out why the defendants or any of them could not appear before the court when the case was listed for trial. The first defendant is the father-in-law of the second defendant. The wife of the 1st defendant suffered from cancer and she had to be taken to Kozhikode for treatment, and that circumstance, according to the counsel for the appellants, was the cause for his absence before the court when the suit was posted for trial. Having regard to the submissions made by the counsel, we find, it is not possible to FAO 39/09 - 2 - hold that there was culpable negligence or wilful laches on the part of the defendants in their failure to appear before the court on the hearing date. May be the cause shown by the appellants to explain their absence was not substantiated by documentary evidence. Still, in the given facts, there is no reason to doubt the sworn testimony of the 1st defendant, who was examined as P.W.1 in the proceedings. We are satisfied that this is a fit case where the appellants deserve to be afforded an opportunity to have a decision of the case on merits, after adjudication, on setting aside the ex parte decree passed against them, on terms. The order impugned in the appeal shall stand set aside on condition of the appellants paying a sum of Rs.3000/- to the respondent in reparation of the injury likely to be suffered by him in setting aside the ex parte decree and trial of the case afresh. The cost ordered as above shall be paid to the learned counsel appearing for the respondent within two weeks from the date of this order. In default payment of cost as ordered above within the time stipulated, the appeal will stand dismissed without any further orders. The court below shall dispose the suit as expeditiously as possible and at any rate, within four months from the date of receipt FAO 39/09 - 3 - of a copy of this judgment. The parties are directed to appear before the court below on 25th March, 2009. The appeal is disposed of as above. KURIAN JOSEPH, JUDGE srd S.S. SATHEESACHANDRAN, JUDGE