IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 9TH APRIL 2010 / 19TH CHAITHRA 1932 FAO.No. 17 of 2010() -------------------- AGAINST THE ORDER DATED 15/06/2009 IN IA.1316/2008 IN OS.523/2006 of PRINCIPAL SUB COURT,KOLLAM .................... APPELLANT/DEFENDANT --------------------------------------- R.ANANTHAKUAMR, S/O.RAMACHANDRA REDDIAR, AGED 43 YEARS, RESIDING AT "DHANAMS" KUTCHERRY WARD, KOLLAM. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): PLAINTIFF ------------------------ N.RAVEENDRANADHAN,S/O.NANU MESTHIRI, AGED 64 YEARS, RESIDING AT PANAVILA PUTHUVAL VEEDU, ULIYAKOVIL, KOLLAM. ADV. SRI.V.V.RAJA FOR R SRI.M.T.SURESHKUMAR FOR R THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 09/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & C.K. ABDUL REHIM, JJ. ------------------------------------------ FAO. No. 17 of 2010 ------------------------------------------- Dated this the 9th day of April, 2010 J U D G M E N T Pius C. Kuriakose, J. Under challenge in this appeal is an order passed by the learned Subordinate Judge, Kollam dismissing an application filed by the appellant defendant for setting aside an ex parte decree that was passed against him. The suit was for money and was decreed ex parte for recovery of a sum of Rs.3,06,850/- with interest and cost. The ground raised in the application under Order 9 Rule 13 was that the mother of the appellant was undergoing treatment in a Coimbatore Hospital and hence the appellant could not be present on the day the suit was listed for trial. As rightly noticed by the learned Subordinate Judge, not even a scrap of paper was produced by the appellant to show that the FAO. 17/10 - 2 - grounds stated in the affidavit in support of the application is correct. That being so, the learned Subordinate Judge cannot be blamed for having dismissed the application. However, we notice that the cause has not been adjudicated on its merits. Keeping in mind the policy of law that as far as possible causes should be allowed to be adjudicated on merits, rather than decided on technicalities we are inclined to afford an opportunity to the appellant, but only on terms. 2. The result is that the impugned order will stand set aside. IA. 1316/08 will stand allowed subject to the following conditions. 1) The appellant shall furnish security to the satisfaction of the trial court for the plaint claim within three months from today. 2) The appellant shall pay a sum of Rs.5000/- (Rupees five thousand) as costs to the respondent either directly or through the respondent's Advocate in this court on or before 20th May, 2010. FAO. 17/10 - 3 - 3) The appellant will pay a sum of Rs.1000/- (rupees one thousand) to the High Court Legal Services Committee within ten days from today and produce receipt. The receipts against payment of the amounts will be produced before the court below and the present judgment setting aside the impugned order and allowing the IA will become operative only upon the court below noticing receipts of payment. Since the suit is of the year 2006 once it is seen that the present judgment has become operative, the learned Subordinate Judge will re-list the suit for trial in the earliest available special list, try the same on a day- to- day basis and dispose of the same without undue delay. PIUS C.KURIAKOSE, JUDGE C.K. ABDUL REHIM, JUDGE ksv/-