IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 FAO.No. 146 of 2005() --------------------- AGAINST THE ORDER DATED 28/05/2005 IN IA 500/04 IN OS.52/1998 of SUB COURT, QUILANDY .................... APPELLANT/PETITIONER/DEFENDANT: ------------------------------------------------------- KATTIL PRAKASAN, S/O.KANARAN, THRIKKOTTOOR AMSOM DESOM, KOYILANDY TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S)/REPONDENT/PLAINTIFF: ---------------------------------------------------------- P.K.SURENDRAN, S/O.KELU, PULIYARKANDY, THRIKKOTTOOR AMSOM DESOM, KOYILANDY TALUK. ADV. SRI.V.G.ARUN FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 27/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 146 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of May, 2009. JUDGMENT Bhavadasan, J, Petitioner, whose application for setting aside the ex-parte decree was dismissed, is the appellant. 2. The suit was one for money. Appellant, who is the defendant in the suit had entered appearance and filed his written statement raising his contentions. The suit was posted for trial on 19.5.2004. It may be noticed here that the suit had been dismissed for default on an earlier occasion and that had been restored to file. On 19.5.2004 the suit was posted for evidence on 7.6.2004. On that day the plaintiff and his counsel were present. Defendant sought for adjournment on medical ground and filed an application for the same. The prayer for adjournment was rejected. Thereafter it appears that the trial court went on to take evidence adduced on behalf of the FAO/146/2005. 2 plaintiff and decreed the suit. It was against the said decree that the petition has been filed. 3. It is to be noticed that the reason given for dismissing the present application was that on an earlier occasion his application for adjournment was rejected. It is also stated that the evidence adduced had been evaluated and the decree passed. 4. It may at once be noticed that the reason for setting aside the ex-parte decree cannot be based on the ground that the earlier application for adjournment was dismissed. This is not in accordance with law. Petitioner before the court below had urged specific grounds, based on which the ex-parte decree was sought to be set aside. On going through the records, we are satisfied that sufficient cause has been shown to set aside the ex-parte decree and even if any injury or loss is caused to the plaintiff, he can be adequately compensated by awarding costs. The order is clearly unsustainable in law. FAO/146/2005. 3 In the result, this appeal is allowed and the impugned order is set aside on condition that the petitioner pays Rs.5000/- as costs to the respondent through counsel within six weeks from today. The amount is not paid, the appeal will stand dismissed. The parties are to appear before the court below on 14.7.2009. P.R. Raman, Judge P. Bhavadasan, Judge sb.