IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 11TH JUNE 2010 / 21ST JYAISTHA 1932 FAO.No. 81 of 2009() -------------------- OS.196/2007 of II ADDL.SUB COURT,KOZHIKODE .................... APPELLANT/PETITIONER/DEFENDANT -------------------------------------------------- C.FATHIMA,D/O.MUHAMMED,41 YEARS, NALUKUDI PARAMB,VELLAYIL P.O., KALATHINKUNNU AMSOM,DESOM, KOZHIKODE TALUK. BY ADV. SRI.NIRMAL. S RESPONDENT/PETITIONER/PLAINTIFF ---------------------------------------------- KUNHUMOOSA MARAKKATH ASHARAF, S/O.BEERANKOYA,42 YEARS, KALATHINKUNNU AMSOM,DESOM, KOZHIKODE TALUK. ADV. SRI.K.SANEESH KUMAR THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 11/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------------------- F.A.O.No.81 OF 2009 ------------------------------------------- Dated this the 11th day of June, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. 1.The defendant challenges a common order dismissing an application to set aside an ex parte decree and also another application filed seeking condonation of delay in filing the application to set aside the ex parte decree. 2.The plaintiff's case is that he put the defendant in possession of the suit property as a guarantee for Rs.75,000/- stated to have been lend by the defendant to the plaintiff. The defendant filed written statement contending that the said amount of Rs.75,000/- was paid as advance under an oral agreement for sale. Therefore, one of the moot issues in the suit is that what is the quality of the amount which, FAO.81/09 2 admittedly, was paid by the defendant to the plaintiff and whether the transaction is a loan or an agreement for sale. 3.After the filing of the written statement, when the matter came up for trial, the defendant was absent leading to the decree passed ex parte. She later applied to set aside that decree and pleaded to condone the delay in making that application. In support of that, she placed on record Ext.A1, a prescription issued by an Assistant Surgeon in Thiruvambadi. The plaintiff opposed that application by filing a counter affidavit. The applicant defendant tendered evidence as PW1. The court below took the view that Ext.A1 prescription was challenged, including its authenticity and went on to disbelieve that document. It was stated that if the defendant was actually sick, she could have availed treatment within Kozhikode Corporation limits itself where there are large number of doctors rather than go to Thiruvambadi. It was also stated that if she could travel to Thiruvambadi from FAO.81/09 3 Kozhikode, she could have, very well, informed her counsel about her inability to attend the court. 4.While the appreciation of evidence has been made as aforesaid, one matter is certain. The decision on the litigation has to revolve on the issues which we have noticed in the preceding paragraphs. Having noted the contentions that are mooted for consideration at trial, we are of the view that on the available evidence, the court below ought to have taken a more lenient attitude as there was sufficient cause shown by the defendant for her absence in court when the suit was taken up for trial. She had also explained the delay sufficiently. We are of the view that the appeal can be allowed on terms. 5.In the result, this FAO is allowed setting aside the impugned common order and allowing I.A.Nos.2076/08 and 2077/08 in O.S.196/07 of the Sub Court, Kozhikode on condition that the appellant defendant will pay to the plaintiff through his FAO.81/09 4 counsel appearing before this Court an amount of Rs.7,500/- as costs within a period of one month. If the defendant produces evidence of such payment before the court below, the suit will be taken back for trial and proceeded with for expeditious consideration and disposal. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.15/06. Certified that appellant has paid Rs.7,500/- (Rupees Seven thousand Five Hundred only) as cost to the counsel for the respondent in compliance of the direction contained in the judgment dated 11/06/2010 in F.A.O.81/2009 vide memo c.f.4011/2010. Sd/- Registrar (Judicial)