IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 FAO.No. 342 of 2010 ----------------------------- [I.A. NO.2459/2009 IN O.S. NO. 141/2007 OF THE SUB COURT, MANJERI] ................ APPELLANT/PETITIONER/DEFENDANT: --------------------------------------------------------- POONTHOTATHIL ABDUL SALAM, S/O.SAIDALAVI HAJI, KARUVMBRUM AMSOM, DESOM, ERNAD TALUK, MALAPPURAM DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER: KINATTINGAL AMEER ALI S/O.SAIDALAVI, KARUVMBRUM AMSOM, DESOM,ERANAD TALUK, MALAPPURAM DISTRICT. BY ADVS. SRI.P.VENUGOPAL, SMT. M.M. DEEPA. RESPONDENTS/RESPONDENTS/PLIANTIFFS: ------------------------------------------------------------------ 1. KALAYATH ABDUL AZEEZ, S/O KUTTIALI ANAKAYAM AMSOM, DESOM, ERANAD TALUK, MALAPPURAM DISTRICT – 676 509. 2. PARAMBAN BHAGAVATHI PARAMBATH ALAVI, S/O.MOHAMMED, IRUMBUZHI AMSOM, VADAKKUMMURI DESOM, ERNAD TALUK, MALAPPURAM DISTRICT – 676 504. 3. EDAPPALLY VATTINGAVIL RAGHUNATHAN, S/O.VASUDEVA PANICKER, ARUKIZHAYA AMSOM, DESOM, ERNAD TALUK, MALAPPURAM DISTRICT – 676 504. R1 & R2 BY ADV. SRI.SAJU.S.A. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 06/12/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ. ------------------------------------------------------------------------ FAO No.342 of 2010 ------------------------------------------------------------------------ Dated 6th December 2010 Judgment Bhavadasan, J. The defendant, who suffered an ex parte decree and whose application for setting aside the ex parte decree was rejected by the court below, is the appellant. 2. The suit is one for specific performance. It was posted in the list for trial on 11.08.2009. On the basis of an adjournment motion made by the defendant, it was posted to 06.10.2009. On 06.10.2009, the counsel for the defendant reported no instruction. On 09.10.2009, the plaintiff was examined, documents were marked and an ex parte decree was passed. 3. Within the time stipulated for setting aside the ex parte decree, the defendant moved IA No.2459/09, pointing out that due to medical reasons, he could not attend the court on 06.10.2009 and also that he was unable to inform his counsel about the same. He had produced a medical certificate also in support of his claim for setting aside the ex parte decree on medical grounds. His power- of-attorney was examined as PW1. FAO 342/10 2 4. The court below was unimpressed by the evidence adduced by the petitioner before the court below and also found fault for not examining the doctor, who had issued Ext.A1 document. The court below has also noticed that on 09.01.2010, the petitioner had gone abroad. The court below refused to accept the reasons given by the petitioner and dismissed the petition. 5. It is seen from the records that the petitioner did file his written statement and had raised serious contentions against the claim made by the plaintiff. He is aged 68 years as could be seen from the order of the court below. The court below does not suspect the medical certificate at all. True, the doctor could have been examined. But, the mere fact that it was not done, by itself, is not a ground to suspect the claim made by the petitioner. The fact that he had later gone abroad to get his service benefits, could not have been taken as a ground to hold against him. There is nothing to show that he has been adopting dilatory tactics with the deliberate intention of protracting the proceedings. It is difficult to believe that he would have taken the risk of absenting himself and inviting an ex parte decree. May be that there has been some laches on his part, but the duty of the court is to do justice between parties, unless it is shown that the party concerned is guilty of contumacious conduct, a liberal approach should have been taken. At any rate, any injury suffered by FAO 342/10 3 the opposite side could be easily compensated by awarding costs. It is felt that an opportunity should be given to the petitioner to have his case decided on merits. In the result, this appeal is allowed. The impugned order as also the ex parte decree passed on 09.10.2009 are set aside. The court below shall take back the suit to file and dispose of the same in accordance with law as expeditiously as possible. THOTTATHIL.B.RADHAKRISHNAN, JUDGE P.BHAVADASAN, JUDGE sta FAO 342/10 4