IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 29TH JULY 2011 / 7TH SRAVANA 1933 FAO.No. 118 of 2011 --------------------------- AGAINST THE ORDER DATED 05/02/2011 IN IA 1102/2010 IN OS.145/2009 of SUB COURT, HOSDRUG .................... APPELLANT (S):/PETITIONER/DEFENDANT: --------------------------------------------------------------- K.ASHA, AGED 35 YEARS, W/O. MOHANAN, RESIDING AT KALLYOT, PERIYE VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.SURESH KUMAR KODOTH RESPONDENT(S): RESPONDENT/PLAINTIFF: -------------------------------------------------------------- SREEJAYAN, AGED 35 YEARS, S/O. KARUVAN, RESIDING AT PERIYARAM, UDMA VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT-671 314. BY ADV. SRI.JAWAHAR JOSE SMT.CISSY MATHEWS THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 29/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- F.A.O. No.118 of 2011 ----------------------------------------- Dated, this the 29th day of July, 2011 J U D G M E N T K.M.Joseph, J. Appellant is the defendant in a suit for specific performance. The suit is decreed exparte. Appellant filed application under Order 9 Rule 13 CPC to set aside the exparte decree. The same has been dismissed. Accordingly, this appeal. 2. The brief case of the appellant is as follows: The suit was posted to 20.10.2010 for cross examination of the respondent/plaintiff. Appellant was unable to give instruction as she was laid up owing to back-ache. The doctor advised her to take rest for 15 days. Certificate of the doctor was also produced. Non appearance before the court was not intentional. Respondent filed counter affidavit. The court below noted that there is delayin filing the written statement itself. After filing written statement the matter was posted to 14.10.2010. On that day the defendant was not present. The counsel for the appellant through his junior had sought adjournment as he was busy in connection with the local body elections. The court granted FAO 118/2011 -2- adjournment and the case was posted to 20.10.2010. On the said day also the appellant was absent. Learned counsel reported no instruction and it was in this circumstance the exparte decree was passed on that day. Thereafter the court has also proceeded to refer to the case of the appellant apparently. It is found that even if she was laid up she could have easily instructed her counsel for cross examining the respondent on any day to the trial date. 3. We heard the learned counsel for the appellant. Learned counsel for the appellant submits that there is a good case on merits and only on account of the lawyer being busy with the election matter was adjourned on 14.10.2010. On 20.10.2010 she was laid up. We heard the learned counsel for the respondent also who supports the order. We feel that having regard to the fact that the suit is one for specific performance of an agreement to sell an extent of 78 cents and having regard to the stakes involved we feel that an opportunity should be granted and there should be an adjudicated decision. In such circumstances, we take a liberal view and set aside the impugned order on condition that the appellant will pay Rs.3,000/- to the FAO 118/2011 -3- learned counsel for the respondent appearing in this Court within ten days from today and produce receipt for the same. In case the amount is not paid as directed, the appeal will stand dismissed. In case the amount is paid, the Sub Court, Hosdurg will take up the suit and dispose of the same finally on or before 31.1.2012. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS