IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 9TH NOVEMBER 2010 / 18TH KARTHIKA 1932 FAO.No. 321 of 2010() ------------------------------- IN IA 233/2010, I.A.NO. 234/2010,IN OS.456/2009 of PRINCIPAL SUB COURT,KOLLAM .................... APPELLANT/PETITIONER/DEFENDANT ------------------------------------------------------ GEORGE THOMAS,AGED 82 YEARS, S/O.P.I.THOMAS,R/AT SALI SADANAM,MUNNAALAM MURI, ADOOR VILLAGE,PATHANAMTHITTA DISTRICT,REP.BY P/A ANIYAMMA JOHNY, AGED 50 YEARS,D/O.KUNJAMMA LUKOSE, R/AT PALLIYAZZHIKATHU,NEEROZHUKKIL,ERAM NORTH, CHATHANNOOR,MEENAD VILLAGE, KOLLAM DISTRICT. BY ADVS. SRI.V.VENUGOPALAN NAIR SRI.C.UNNIKRISHNAN (KOLLAM) RESPONDENT(S): RESPONDENT/PLAINTIFF -------------------------------------------------------------- BINU THOMAS, AGED 38 YEARS, W/O.THOMAS GEORGE, RESIDING AT VALLIYAVILAKAM VEEDU, ERAM CHERRY, MEENADU VILLAGE, KOLLAM TALUK. ADVS. SRI.N.RAJENDRAN SRI.K.S.FRIJO SRI.REJI GEORGE SMT.MANJU RAJAN THIS FIRST APPEAL FROM ORDERS HAVING FINALLY HEARD ON 9/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts “C.R.” THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ. ------------------------------------------------------------------------ FAO No.321 of 2010 ------------------------------------------------------------------------ Dated 9th November 2010 Judgment Thottathil.B.Radhakrishnan, J. This appeal is filed against an order by which the court below dismissed an application to set aside the ex parte decree as a consequence of the refusal to condone the delay of 95 days in applying to set aside the ex parte decree. The 82 year old appellant-defendant in the suit is the father-in-law of the plaintiff, who sued for specific performance of an alleged agreement for sale by the father-in-law. 2. The suit was decreed ex parte. The application to set aside the ex parte decree and the application to condone the delay in applying to set aside the ex parte decree were supported by affidavits filed by the power of attorney, duly appointed by the father-in-law. There was no counter affidavit filed in opposition to the applications filed before the court below. However, we are pained to note that the court below, by a cryptic single line order, dismissed the application seeking FAO 321/10 2 condonation of delay by stating that “there is no proper and convincing explanation for the delay of 95 days.” Apart from this sentence and the statement that “so the petition is dismissed”, the impugned order does not reflect consideration of any of the grounds which were offered as sufficient cause for the delay in filing the application to set aside the ex parte decree. The grounds in support of the application to set aside the ex parte decree also stand consequentially rejected. 3. The defendant has specifically stated in paragraph 4 of the appeal memorandum that he was laid up from March 2008 onwards and was admitted to S.U.T.Hospital, Thiruvananthapuram. He is supported by a pacemaker and thereafter, he had been suffering from different health problems, referable to diabetes. From April 2009 onwards, he is not in a position to move from bed. He resides in Adoor along with his daughter-in-law, who is a teacher at Kottarakkara. 4. An order setting aside the ex parte decree or refusing to set aside the ex parte decree, is an order appealable under the Code of Civil Procedure. It is rudimentary that an order that is appealable should contain reference to the FAO 321/10 3 facts, at least skeletal, as also the contentions. It should also state the reason why the court below comes to a particular conclusion. Otherwise, the first casualty would be suffered by the appellate court because it would not even know the reason for which the subordinate court has granted or made a particular order. The right to know the reason for an adverse decision is inbuilt in Article 14 of the Constitution of India. If it were in the realm of administrative decisions, even the provisions in the Right to Information Act, as they now stand, categorically require any administrative decision, which is adverse to a person, to contain the reason for such decision. The impugned orders short of any reason being stated therein, are liable only to be reversed. 5. Having looked into the affidavits filed in support of the interlocutory applications before the court below, we do not find any reason, why those applications shall not be allowed, though we are told that pursuant to the ex parte decree, documentation has been made through court and proceedings for delivery is on. FAO 321/10 4 Having regard to all the aforesaid, we allow this appeal and set aside the impugned orders dated 09.02.2010 in IA Nos.533/10 and 534/10 in OS No.456/09. As a consequence, those I.As. for condoning the delay and for setting aside the ex parte decree, are allowed. We direct the court below to take up the suit, giving the defendant, appropriate opportunity to place the defence and adduce evidence. Considering the relationship between the parties and the nature of the impugned orders, we desist from passing any order of costs. THOTTATHIL.B.RADHAKRISHNAN, JUDGE P.BHAVADASAN, JUDGE sta FAO 321/10 5 FAO 321/10 6