IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 23RD OCTOBER 2009 / 1ST KARTHIKA 1931 FAO.No. 72 of 2009() -------------------- AGAINST THE ORDER DATED 28/01/2009 IN IA.3145/2008 IN OS.100/2006 of ADL.SUB COURT, THALASSERY .................... APPELLANT/PETITIONER/DEFENDANT -------------------------------------------------- V.V.RAJALAKSHMI, D/O.BALAKRISHNAN, AGED 56 YEARS, RESIDING AT VALIYADATH VEETTIL, PALLIKUNNU AMSOM, KANNUR DISTRICT. BY ADV. SRI.A.MOHAMED MUSTAQUE SRI. M.P. MOHAMED FAZIL RESPONDENT(S): RESPONDENTS/PLAINTIFF ------------------------------------ 1. V.P.REGHUNATHAN, S/O.KUNHIRAMAN, AGED 42 YEARS, RESIDING AT SREERAG, TALAP, KANNUR DISTRICT. 2. SREEDHARI REGHUNATHAN, S/O.REGHUNATHAN, AGED 33 YEARS, RESIDING AT SREERAG, TALAP, KANNUR DISTRICT. ADV. SRI.R.PARTHASARATHY THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 23/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. NO: 72 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd Day of October, 2009. JUDGMENT K. M. Joseph J., The appeal is against the order passed in IA No:3145 of 2008 in O.S. No. 100 of 2006 on the file of Additional Sub Court, Thalasserry. 2. We heard the learned counsel for the appellant and the learned counsel for the respondents. 3. The court below found that summons in this case was issued to the appellant by Registered post, but she refused to accept it. The appellant admitted to have received the notice in E.P. Summons was also sent in the very same address. Thereafter summons was published in the News Paper published from Kannur. F.A.O. NO: 72 OF 2009 :2: 4. It is also stated that she has not stated when she received notice in the EP and not adduced any evidence in support of her contention. Further it is stated that there is a delay of 362 days in filing the I.A. The I.A. was dismissed. 5. The learned counsel for the appellant would contend that actually summons was not refused by the appellant. In fact the respondents do not dispute the actual endorsement in the summons is that it was returned for the reason that the appellant is not known. But learned counsel for the respondents would contend that the very same party received notice in the very same E.P. and it is only for that reason that the court made the observation that the appellant did not accept it. 6. In view of the fact that the endorsement does not show that the appellant did refuse summons, we feel that an opportunity should be given to the appellant to contest the matter on merits. However, we feel that it cannot be an unconditional order. Accordingly, the appeal is allowed and the impugned order is F.A.O. NO: 72 OF 2009 :3: set aside on condition that the appellant deposits an amount of Rs.1,00,000/- (Rupees one lakh only) within one month in the court below. The suit will be taken up and disposed of finally within a period of three months from the date of receipt of a copy of this judgment. The amount deposited will be dealt with after the decision to be taken in the suit. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE. dl/