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 21ST OCTOBER 2009 / 29TH ASWINA 1931 FAO.No. 198 of 2007 ------------------------------------ AGAINST THE ORDER DATED 19/10/2006 IN IA.1640/2006 IN OS.102/2004 of ADL.SUB COURT, THALASSERY .................... APPELLANT/ DEFENDANT: ------------------------------------- SHAHUL HAMEED, S/O.PEER MUHAMMED, SANTHI VILLA, P.O.BALARAMAPURAM, THIRUVANANTHA- PURAM. BY ADV. SRI.M.SASINDRAN SRI.K.T.POULOSE (KORATTY) PLAINTIFF(S): RESPONDENT: ---------------------------------------- UNITED MARKETING COMPANY LTD., TELLICHERRY BRANCH, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER-K.SATHISHKUMAR. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 21/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. -------------------------------------------------- F.A.O. NO. 198 OF 2007 --------------------------------------------------- Dated this the 21st October, 2009 JUDGMENT K.M. Joseph, J. Appellant is the defendant in a Suit for recovery of a sum of Rs.2,18,026/= with six per cent interest. He challenges the order passed on the Application to set aside the ex parte decree. It is his case that he has filed Written Statement on 18.10.2006. The appellant was set ex parte on 19.6.2006. It is further stated that it is for non-filing of Written Statement. It is submitted that the Suit was decreed ex parte twice earlier. It is his case that he is an acute bladder tumor patient and he has been undergoing treatment in the Regional Cancer Centre, Thiruvananthapuram. The Suit was posted on 30.6.2006 for Judgment and it was decreed on the said date. Thereupon, the appellant filed the present I. A.No.1640/06. Therein, he had stated that he was laid FAO.198/07 2 up due to Rheumatoid Arthritis. He produced Medical Certificate, it is stated, but the learned Additional Sub Judge dismissed the Application. 2. Learned counsel for the appellant would submit that it was only on account of the physical condition of the appellant, that he could not be present. It is his case in the Application that he has valid contentions. 3. We feel that an opportunity should be given to the appellant. However, it cannot be an unconditional order. Accordingly, we allow the Appeal and set aside the impugned order and the Application filed by the appellant shall stand allowed on condition that the appellant will pay Rs.5,000/= (Rupees Five Thousand) as costs to the respondent Company within one month from today and file a Memo to that effect before this Court within one month from today. If the appellant does not remit Rs.5,000/= (Rupees Five Thousand) within one month from today to the respondent Company and produce a FAO.198/07 3 Memo to that effect before this Court within one month from today, the Appeal will stand dismissed. Sd/= K.M. JOSEPH, JUDGE Sd/= M. L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge