IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 FAO.No. 341 of 2007() --------------------- OS.89/2004 of PRINCIPAL SUB COURT,PARAVUR .................... APPELLANT/PETITIONER IN I.A./DEFENDANT IN SUIT ------------------------------------------------------------------ CLAMENT @ JAMES, S/O. ANTHAPPAN, THAIPARAMBIL HOUSE, PALLIPPURAM CHALIL, ELOOR VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN RESPONDENT(S): RESPONDENT IN I.A./PLAINTIFF IN SUIT --------------------------------------------------- PRAKASHAN, S/O. RAMAN, MANNALI HOUSE, PALLIPPURAM, CHERAI, ERNAKULAM DISTRICT. ADV. SRI.SAJAN MANNALI FOR R1 SRI.M.P.JAYAKUMAR FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 28/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO 341 OF 2009 -------------------------------------------------------- Dated 28th July 2009 Judgment RAMAN, J. This is an appeal against the order dismissing a petition filed under Order IX Rule 13 CPC, seeking to set aside the ex parte decree passed on 07.03.2007. The appellant is the defendant. On the date, on which the ex parte decree was passed, the appellant was absent. The reason for his absence was stated to be that he was undergoing treatment. A medical certificate was also produced, but the doctor was not examined. Yet another suit was pending against the wife of the appellant. That suit also happened to be dismissed on the listed date. There, the wife contended that she was in the hospital. 2. The respondent seriously disputed the correctness of the medical certificate. The appellant, however, did not take any steps either to examine the doctor or to mount the box. In FAO 341/07 2 the absence of any materials produced, cogently proving to the satisfaction of the court below that there is sufficient cause for non-appearance, the court below dismissed the petition. The learned counsel for the appellant pleaded that at least an opportunity may be given to prove his case before the court below. 3. We heard the learned counsel on both sides. In the facts and circumstances of the case, we think, it is only appropriate that an opportunity could be given to the appellant to substantiate his contentions by examining the doctor and offering himself as a witness. For the limited purpose of enabling the appellant to give evidence in the interim application, we set aside the impugned order, however on terms that the appellant shall pay Rs.2,000/- (Rupees Two Thousand only) or deposit the same before the court below within one month from today. On such deposit being made, the order passed in the IA will stand FAO 341/07 3 set aside and the IA restored to file. On failing to deposit the amount, the appeal will stand dismissed. The appeal is allowed as above. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta FAO 341/07 4