IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 FAO.No. 400 of 2010 ---------------------------- AGAINST THE ORDER DATED 09/02/2010 IN IA 541/2010 IN OS.320/2009 of PRINCIPAL SUB COURT,KOLLAM .................... APPELLANT (S):PETITIONER: ------------------------------------------ AJAYAN C.,S/O.CHANDRAN PILLAI AGED 41 YEARS, THADATHIL VEEDU, PULARI NAGAR, PUNTHALATHAZHAM, VADAKKEVILA VILLAGE KOLLAM BY ADV. SRI.SAJU J.VALLYARA RESPONDENT(S): COUNTER PETITIONER: ----------------------------------------------------------- C.RAVEENDRAN PILLAI, S/O.CHELLAPPAN PILLAI, BUSINESS, CHELLAM, PUNTHALATHAZHAM, VADAKKEVILA VILLAGE, KOLLAM BY ADV. SRI.P.B.SURESH KUMAR SRI.LEO GEORGE THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ORDERS ON 15/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & A. M. SHAFFIQUE, JJ. ------------------------------------------------------- F.A.O.No.400 of 2010 ----------------------------------------- Dated, this the 15th day of November, 2011 J U D G M E N T K.M.Joseph, J. Appellant is the defendant in a suit for money. The suit came to be decreed exparte on 27.1.2010. Appellant filed I.A.541/2010 for setting aside the exparte decree. The said application has been dismissed. Hence the appeal. 2. We heard the learned counsel for the appellant. The order passed by the Sub Court, Kollam in I.A.No.541/2010 reads as under. “It is alleged it was due to fever he could not file a written statement on 4.1.2010 and so the case was decreed exparte on 27.1.2010. It is to be noted that written statement shall be filed within the statutory period. In reasonable circumstance the time can be enlarged. Here except a mere averment regarding the fever, no convincing reason was shown for the failure to file written statement in time. So petition is not allowable. Hence dismissed.” 3. After having heard the learned counsel for the parties and having regard to the need for an adjudicated decision we feel that we should interfere in the matter. Accordingly, we allow the appeal, set aside the exparte decree and the application filed by the appellant will stand allowed on condition that the FAO 400/2010 -2- appellant will pay a sum of Rs.5,000/- (Rupees five thousand only) as costs to the learned counsel appearing for the respondent in this Court within a period of two weeks from today and produce the memo to that effect. If the said amount is not paid as directed, the appeal will stand dismissed and the impugned order will stand. If cost is paid as aforesaid, the Principal Sub Court, Kollam will take up O.S.No.320/2009 and dispose of the same finally on or before 31.3.2012. We also permit the appellant to file written statement within a period of two weeks from today. If, such written statement is filed it will be accepted by the Sub Court subject to compliance of the condition regarding payment of cost Rs.5,000/-. (K.M.JOSEPH) JUDGE. (A. M. SHAFFIQUE) JUDGE. MS