IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 FAO.No. 343 of 2007() --------------------- AGAINST THE ORDER DATED / / IN IA 1629/07 IN OS.90/2004 of PRINCIPAL SUB COURT,PARAVUR .................... PETITIONER IN I.A/DEFENDANT IN SUIT: -------------------------------------------------------- ROSY CLEMENT @ MARY CLEMANT, W/O.CLEMANT, THAIPARAMBIL HOUSE, PALLIPPURAM CHALIL, ELOOR VILLAGE, ERNAKULAM DIST. 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 DIST. ADV. SRI.SAJAN MANNALI FOR R1 SRI.M.P.JAYAKUMAR FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 08/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO 343 OF 2007 -------------------------------------------------------- Dated 8th July 2009 Judgment RAMAN, J. The appeal arises out of an order dismissing an application to set aside the ex parte decree, filed under Order IX Rule 13 CPC. The appellant herein is the defendant in the suit. The suit is one for realisation of money based on a promissory note. The defendant contended that the promissory note produced is a fabricated one. However, when the case was posted on 08.03.2007, the appellant did not attend the court and resultantly, the ex parte decree was passed. Thereafter, the appellant filed the application seeking to set aside the ex parte decree, inter alia contending that her husband was hospitalised with chest pain on 05.03.2007 and was discharged only on 07.03.2007. The appellant was also undergoing treatment for backpain. But, neither the appellant was examined nor any documentary evidence produced to prove the hospitalisation of her husband or her treatment. The court below found that in the FAO 343/07 2 absence of any evidence to establish the facts as averred, there is no merit in the contentions raised and accordingly dismissed the application. Hence this appeal. 2. The learned counsel Sri.N.Subramaniam for the appellant would contend that this is a case where the appellant was not given an opportunity to adduce evidence in support of her contentions. According to him, a medical certificate was produced, a copy of which was handed over to this court at the time of hearing. In the view we are taking now, we are not expressing any opinion on the said medical certificate. However, we feel that an opportunity can be given to the appellant to establish his case and to show sufficient reasons for condoning the delay. The principles of natural justice demand that such an opportunity should be given. In such circumstances, we set aside the order passed by the court below and remand the case to the trial court. The application filed under Order IX Rule 13 CPC stands restored and the appellant shall be given an opportunity to adduce evidence in support of her contentions. The respondent may also be given an equal opportunity to rebut FAO 343/07 3 evidence if any adverse to him. The trial court shall take a fresh decision in the application in accordance with law. The parties shall appear before the court below on 10th August 2009 and they shall be ready to adduce evidence, both oral and documentary. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta FAO 343/07 4