IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 FAO.No. 105 of 2009() --------------------- AGAINST THE ORDER IN IA 1732/2008 IN OS.4/2003 of SUB COURT, OTTAPPALAM .................... APPELLANT/PETITIONER/DEFENDANT ------------------------------------------------------- P.K.THOMAS, S/O.P.K.KOCHAPPAN, AGED 64 YEARS, RESIDING AT BADEL NIVAS, PAZHUTHARA, THRIKKANGODE AMSOM, MANISSERY DESOM, OTTAPALAM TALUK. BY ADV. SRI.BINOY VASUDEVAN RESPONDENT(S): PLAINTIFF ---------------------------------------- ABDUL KHADER, S/O.PADIYATH YOUSUF HAJI, KOTHAKURUSSI AMSOM, EDAKKAD, PAVUKONAM DESOM, OTTAPALAM TALUK, REP. BY MUKTHIYAR AGENT, BY P/A.HOLDER OF ATTORNEY HOLDER PRABHAKARAN, S/O.MALATHANKOTTIL VELAYUDHAN, KOONATHARA AMSOM, PANAYOOR DESOM, OTTAPALAM TALUK. ADV. SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 26/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: .P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 105 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of June, 2009. JUDGMENT Raman, J, Appellant challenges the dismissal of an application filed by him seeking to set aside the ex-parte decree passed against him. According to him, on the appointed day, he was not keeping well. He gave evidence as P.W.1. Further to prove that he was suffering from ailment, he examined the Doctor. Ext.B2 is the discharge card. The court below entered a finding regarding the suggestion that he might have been ill and hospitalized based on the medical proof he adduced. But the court below went on to hold that there is no explanation as to why he did not inform his counsel about the illness. The court below also held that on an earlier occasion also the appellant remained absent when the suit came up for trial. 2. The fact that the appellant was absent on an earlier occasion is not a ground to dismiss his application, if he F.A.O.105/2009. 2 has shown sufficient reasons for the absence on the appointed day, on which he was declared ex-parte. Further, the fact that he has not informed his counsel is also not a good ground to deny one more opportunity to contest the case. On an over all consideration of the facts and circumstances, we are of the opinion that the court below ought to have given an opportunity atleast on terms. In the result, we allow this appeal, restore the suit to file on condition that the appellant shall pay an amount of Rs.5000/- to the respondent or deposit before the court below within one month from today, failing which the appeal will stand dismissed. On such deposit or payment as the case may be, the court shall proceed to dispose of the case on merits as expeditiously as possible and at any rate within a period of four months. It is said that the respondent-plaintiff is employed in Gulf and he is already available to be examined. If so, the respondent be examined by the court below before he schedule to F.A.O.105/2009. 3 leave the country. The appellant undertakes that he will not seek any adjournment until completion of the examination of the plaintiff. This is recorded. The parties shall appear before the court below on 27.7.2009. P.R. Raman, Judge P. Bhavadasan, Judge sb.