IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 10TH MARCH 2008 / 20TH PHALGUNA 1929 FAO.No. 218 of 2007() --------------------- AGAINST THE ORDER DATED 13/04/2007 IN IA 1642/2006 IN OS.37/2006 of SUB COURT, MANJERI .................... APPELLANTS/PETITIONERS: ----------------- 1. PAYYANTHARA KURIAN'S SON SUNNY, RESIDING AT VATTAPARAMBIL HOUSE, PULPATTA AMSOM, KALATHILPPADI, ERNAD TALUK. 2. RAJEENA, W/O.SUNNY RESIDING AT -DO-, -DO-. BY ADV. SRI.T.R.RAVI RESPONDENT/RESPONDENT ------------- PARAMBATH MERI, S/O.PAYYANTHARA KURIAN, KARUVAMBRAM AMSOM, MANJERI, ERNAD TALUK. BY ADV. SRI.BINDU SREEKUMAR THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 10/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & V.K.MOHANAN, JJ. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ F.A.O.No.218 of 2007 ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 10th day of March, 2008 J U D G M E N T P.R.RAMAN, J. This is an appeal against the order passed by the court below dismissing the application filed by the appellants/defendants to set aside the ex parte order passed on 07/12/2006. The suit was instituted by the plaintiff to set aside the assignment deed No.3707/2002. The plaintiff is the mother of the first defendant and the assignment deed in question was one executed by the plaintiff mother in favour of the second defendant, daughter-in-law. The order reveals that as early as on 10/03/2006 the defendants entered appearance and the case was posted on 27/07/2006 for written statement, and on 27/07/2006, it was represented that the written statement was filed and hence the case was posted to 26/09/2006. As a matter of fact, when the matter was taken on 26/09/2006, it was noticed that no written statement was filed and hence, the defendants were set ex parte and the decree was passed on 07/10/2006. The first appellant gave evidence as PW.1 in the box. He has stated that he was suffering from jaundice on the day on which he was set ex parte. The second defendant, the F.A.O No.218 of 2007 -: 2 :- second appellant herein is his wife, who also did not attend the court. It was stated that she was assisting the first defendant on account of his illness. The first appellant has further stated that he has documentary evidence to support his case. No such documentary evidence such as medical certificate was produced either along with the application or later at the time of examination or any time thereafter before order was passed. In the counter affidavit of the respondents, they denied the plea that the first appellant was suffering from jaundice. The court below, on considering the materials on record, held that the testimony of PW.1 does not inspire confidence in the mind of the court to think that he was prevented by sufficient cause, especially in the absence of any other evidence produced in the case and the application was rejected. We do not find any sufficient reason to take a different view in the matter in the absence of further materials produced in this case. In the circumstances, we find no merits in the case and it is accordingly dismissed. P.R.RAMAN, Judge V.K.MOHANAN, Judge ms