IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933 FAO.No. 249 of 2011 --------------------------------- AGAINST THE ORDER DATED 04/07/2011 IN IA.294/2010 IN OS.38/2007 of SUB COURT, CHERTHALA .................... APPELLANT/ PETITIONER/2ND DEFENDANT --------------------------------------------------------------- JESSINA,VELIYIL,PADINJATTUMKARA VADAKKUM MURI,KUTHIATHODE VILLAGE,CHERTHALA TALUK, ALAPPUZHA DISTRICT.(PRESENTLY RESIDING AT NO.1, SREERAM NAGAR,NEAR KEMP FORT TOTAL,BANGALORE-17) BY ADV. SRI.P.VIJAYAKUMAR SRI.M.MOHAMED NAVAZ SRI.C.R.REGHUNATHAN SRI.B.HARRYLAL RESPONDENT/RESPONDENT/PLAINTIFF ---------------------------------------------------------- ABDUL MAJEED,C.C.12/1452,PANAYAPPALI BHAGAM,THOPPUMPADY VILLAGE,KOCHI TALUK. ADV. SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.B.SUBRAMANYAN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 02/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & A. M. SHAFFIQUE, JJ. ----------------------------------------- F.A.O.NO.249 OF 2011 ------------------------------------------ Dated this the 2nd December, 2011 JUDGMENT K.M. Joseph, J. The Appeal is filed by the second defendant in OS. No.38 of 2007 on the file of the Sub Court, Cherthala. The Suit was one for specific performance. The appellant filed application seeking to set aside the ex parte decree. The court below has dismissed that application. 2. We heard the learned counsel for the appellant and also the learned counsel for the respondent. 3. No doubt, the court below has found that the ex parte decree was passed on 6.2.2010. It was included in the list on 8.1.2010. It was the appellant's case that she could not appear on the listed day. The application was filed, it is stated, only on 8.3.2010. There is inordinate delay in preferring the petition and it is not explained. It is also stated that the appellant was represented by counsel of her own choice and he was aware of the FAO.249 OF 2011 2 adjournment of the case from 8.1.2010 to subsequent dates. If the appellant had any bonafide intention to duly prosecute her case, she could have appeared before the court subsequently also. 4. According to the counsel for the appellant, the appellant was working at Bangalore and her children were of tender age and were not keeping well. The matter was listed for trial on 8.1.2010. The appellant through her counsel represented before the trial court that the matter may be sent over to the Adalath. It was posted on 21.1.2010 before the Adalath. She could not come on 21.1.2010, it is stated. The case was sent back and posted on 4.2.2010. It is the case of the appellant that she made a formal application for re- posting before the Adalath. The said request was rejected by the trial court and the Suit was posted on 6.2.2010 for evidence and the appellant could not be present on 6.2.2010 on a short notice. An ex parte decree was passed. 5. The Suit is on for specific performance. Having regard to the need of an adjudicated decision, we feel that the application FAO.249 OF 2011 3 filed by the appellant must be allowed. Accordingly, the application is allowed, however, subject to the condition that the appellant will pay a sum of Rs.10,000/= (Rupees Ten Thousand) to the learned counsel for the respondent appearing in the case and produce a memo before this Court within a period of three weeks from today. If the amount of costs is paid as aforesaid, the application filed by the appellant will stand allowed and the ex parte decree will stand set aside and the trial court shall proceed to dispose of the Suit itself on or before the closure of the Court for summer vacation, 2012. If the costs is not paid, the Appeal will stand dismissed. Sd/= K.M. JOSEPH, JUDGE Sd/= kbk. A. M. SHAFFIQUE, JUDGE Certified that the appellant has paid Rs.10,000/=(Rupees ten thousand only) as cost to the counsel for the respondent in compliance of the direction contained in the judgment dated 02/12/2011 in F.A.O.249/2011 vide memo c.f.6046/11 dated 20/12/2011. Sd/= Registrar (Judicial) FAO.249 OF 2011 4