IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 FAO.No. 189 of 2009() --------------------- AGAINST THE ORDER DATED 29/10/2008 IN IA.2071/2008 IN OS.113/2002 of SUB COURT, OTTAPPALAM .................... PETITIONERS-DEFENDANTS 2-5: ----------------------------------------------- 1. KAMALAKSHI AMMA, D/O.GOVINDANKUTTY NAIR, ASWATHI, POOKKOTTUKAVU, KADAMBOOR. 2. SAVITHRIKUTTY AMMA, D/O.GOVINDANKUTTY NAIR, VAZHOORKAYARATTU VEEDU, MUNNOORKKODE P.O., THRIKKADEERI. 3. GOURI AMMA @ MRS.T.P.RAJAN MENON D/O.GOVINDANKUTTY NAIR, THEKKEPUTHOOR, MULANHOOR, CHUNGANGAD, OTTAPALAM TALUK. 4. K.S.NARAYANAN, S/O.GOVINDANKUTTY NAIR SANYASI PARAMBU SARKAR VEEDU, MALAMPUZHA ROAD, OLAVAKKODE. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM RESPONDENTS: RESPONDENTS-PLAINTIFFS 1&2 & DEF.6,8 AND 10. ----------------------------------------------------------- 1. C.P.RADHAKRISHNAN, S/O.SANKARA THARAKAN, TRUSTY CHAIRMAN, POOKKOTTU KALIKAVU BHAGAVATHY TEMPLE ROAD, KADAMBOOR. 2. K.K.RAGHUNADHAN, S/O.NARAYANAN NAIR, DEVASWOM EXECUTIVE OFFICER, POOKKOTTU KALIKAVU BHAGAVATHY TEMPLE ROAD, KADAMBOOR. 3. K.GOPINADHAN, S/O.CHERAKKATTIL GOVINDANKUTTY NAIR, KADAMBOOR. 4. LAKSHMIDEVI, W/O.LATE GOPALAKRISHNAN, CHERAKKATTIL, KADAMBOOR. 5. HARISH, S/O.LAKSHMIDEVI, CHERAKKATTIL, KADAMBOOR. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R2 SRI.T.C.SURESH MENON FOR R2 SRI.JIBU P THOMAS FOR R2 SRI.P.S.APPU FOR R2 SRI.A.R.NIMOD FOR R2 SRI.C.A.ANOOP FOR R2 SRI.P.R.RADHAKRISHNAN FOR R3 TO R5 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 16/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. 2831/09 ON F.A.O..No. 189 of 2009() DISMISSED. SD/- K.M. JOSEPH, JUDGE SD/- M.L.JOSEPH FRANCIS, JUDGE 16.12.2009 K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 189 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of December, 2009 JUDGMENT Joseph, J. The appellants are defendants 2 to 5 in a suit for money. The suit was decreed ex parte. They filed I.A.No.2071 of 2008 to set aside the ex pare order. There was a delay in filing the application. Therefore, they filed another application to condone the delay. 2. When the application to condone the delay came up, it was dismissed. The court took note of the fact that there was no medical certificate to prove the alleged medical condition, which prevented the appearance of the party before court. Secondly, the court also took note of the fact that neither the party nor the counsel were present F.A.O. No. 189 of 2009 2 when the case was called. Therefore the application to condone the delay was dismissed. Consequently I.A. 2071 of 2008, to set aside the ex parte order was also dismissed. 3. We heard the learned counsel for the appellants and the learned counsel appearing for the second respondent. 4. The learned counsel for the appellants would point out that they have meritorious contentions in the suit and it was because the parties were living scattered that they could not file the application in time. The person, who filed the affidavit, was conducting the case on behalf of the others. 5. The learned counsel for the 2nd respondent would point out that as against the order dismissing the application to condone the delay, the appellants had the right to file an application for restoration, in which, evidence could have been adduced and the parties could have convince the genuineness of the grounds. Therefore the appeal itself is not maintainable. F.A.O. No. 189 of 2009 3 6. In the decision reported in John v. Mammukutty (1983 KLT 1115) a learned Single Judge of this Court took the view that when an application to condone the delay is dismissed in an application to set aside an ex parte decree, a revision will not lie and it is open to the party to challenge the order dismissing the application to condone the delay in an appeal against the application to set aside the ex parte decree, which is consequently dismissed. 7. No doubt, the learned counsel for the 2nd respondent relied on the decision reported in Manoharan v. Ezhome Grama Panchayat (2001 (1) KLT 905). That was a case, where the suit was dismissed for default. The plaintiff filed an application under Order 9 Rule 9 which was also dismissed for default. The court took note of the fact that the suit was dismissed for default and the restoration application filed under Order 9 Rule 9 was also dismissed for default, the petition to F.A.O. No. 189 of 2009 4 restore the restoration petition under Section 151 C.P.C. is maintainable. 8. We do not think that the respondent may be justified in contending that in a case as this, the appellants should be precluded from impugning the order passed in an application to condone the delay. We feel that we should take a liberal view, but it will not be an unconditional decision. 9. In these circumstances, the appeal is allowed. The impugned order will stand set aside as against the appellants upon the appellants depositing Rs.30,000/- within a period of one month from today and also paying an amount of Rs.5,000/- as cost to the second respondent and produce memo before this court within a period of one month. If either of the two conditions are not satisfied, the appeal will stand dismissed. If the conditions are satisfied, the trial court will take up the suit and proceed with the same as against the appellants at the F.A.O. No. 189 of 2009 5 earliest, at any rate, within a period of five months from the date on which the fact of compliance of the conditions is brought to the notice of the court below. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm The appellants have deposited Rs. 30,000/- (Rupees thirty thousand only) before the trial court and have paid Rs. 5,000/- (Rupees five thousand only) towards cost, to the counsel for the 2nd respondent within the stipulated time in compliance of the direction contained in the judgment dated 16/12/2009 in FAO 189/2009 vide memo cf 327/2010. Registrar (Judicial)