IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 24TH SEPTEMBER 2009 / 2ND ASWINA 1931 FAO.No. 142 of 2009 ------------------------------------- AGAINST THE ORDER DATED 23/03/2009 IN IA 4622/2008 IN OS.224/2007 of ADL.SUB COURT, THALASSERY .................... APPELLANT(S)/ PETITONER/DEFENDANT-I ---------------------------------------------------------- MRS. CHANDRA VIJAYAN, W/O.LATE A.K.VIJAYAN, PLOT NO.4, PREET APARTMENT, 27, POOJARI PLOT, NEAR GANAPATHI MANDIR, VIAROM BAGH, SANGLI DIST, MAHARASHTRA. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENT(S): RESPONDENT/PLAINTIFF -------------------------------------------------------------- A.K.KALLYANI AMMA, W/O.K.T.CHATHUKUTTY NAIR, RESIDING AT YASODA SADANAM, CHUNDA, PO, MOTTAMMAL, KANNUR DIST. ADV. SRI.K.C.SANTHOSHKUMAR FOR R1 SMT.K.K.CHANDRALEKHA FOR R1 SRI.GOPAKUMAR G. (ALUVA) FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 24/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. -------------------------------------------------- F.A.O. NO. 142 OF 2009 --------------------------------------------------- Dated this the 24th September, 2009 JUDGMENT K.M. Joseph, J. The Appeal is directed against the order passed in I.A.No.4622/08 in O.S. No.224/07, which is an I.A. filed seeking to set aside the ex parte decree passed against the appellant. Appellant is the first defendant in the Suit of the year 2007. The case of the appellant, inter alia, is as follows: The Suit was listed for evidence on 14.10.2008 and on that day the respondent/plaintiff ought to have tendered evidence, but she submitted before the court below that since the defendants are relying on a Will, they will have to start adducing evidence first. Therefore, the Suit was adjourned to 15.10.2008 and on that day, the appellant filed I.A.No.3580/08 for appointing an interpreter because, as submitted earlier, the appellant knew only Marathi and Hindi languages. That I.A.was posted for orders on 17.10.2008 and accordingly the Suit was further adjourned to 29.10.2008. On 29.10.2008, for want of time, the court has adjourned the matter to 3.11.2008. On F.A.O.142/09 2 3.11.2008, there was no sitting of the court below. Accordingly, the matter was adjourned to 15.11.2008 and on 15.11.2008, the court below set the appellant ex parte and accordingly decreed the Suit on 29.11.2008. 2. According to the appellant, the appellant is a permanent resident of Sangli District of Maharashtra and she was unfortunately laid up due to illness from 13.11.2008 onwards and she could not be present. The trial court, taking note of the postings on various dates, and that on 15.11.2008 the appellant and another were present and that she wanted to mark the notarised copy of the Will, which is objected to by the plaintiff and they did not produce any evidence, they were set ex parte. It is further stated that the case was posted to 21.11.2008and then to 29.11.2008. The court also took note of the fact that no oral evidence was adduced. It is further stated that there is a Medical Certificate which could not be believed. It is also stated that no explanation is offered either for the absence of the second defendant. The second defendant is stated to be the son of the appellant. F.A.O.142/09 3 3. We heard the learned counsel for the appellant and also the learned counsel appearing on behalf of the respondent. We feel that we should take a lenient view in this matter and an opportunity should be given to contest the matter on merits. But, it cannot be an unconditional order. Accordingly, we allow the Appeal and set aside the impugned order and the Application filed by the appellant will stand allowed upon payment of Rs.1,500/= (Rupees One Thousand & Five Hundred) as costs to the respondent within a period of one month from today. The costs is to be paid to the counsel in this Court and a memo should be produced in this court to that effect within one month from today. Sd/= K.M. JOSEPH, JUDGE Sd/= M. L. JOSEPH FRANCIS, JUDGE kbk. Appellant has paid Rs.1,500/=(One thousand and five hundred only) towards cost to the counsel for the respondent within stipulated time in compliance of the direction contained in the judgment dated 24/09/2009 in FAO 142/2009 vide memo. c.f.6945/2009 dated 22/10/2009. Sd/= Registrar (Judicial) F.A.O.142/09 4