IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 26TH MARCH 2010 / 5TH CHAITHRA 1932 FAO.No. 325 of 2009() --------------------- AGAINST THE ORDER DATED 17/11/2009 IN IA 1198/09 IN OS.136/2006 of PRINCIPAL SUB COURT,ATTINGAL .................... APPELLANT/ PETITIONER/DEFENDANT: ----------------------------------------- ALIYARUKUNJU SALIM, SWADIYA GARDENS, MEVARKAL DESOM, ALAMCODE VILLAGE, FROM LEKHA NIVAS, SARADA GARDENS, NEERAMANKARA DESOM, NEMOM VILLAGE. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): COUNTER PETITIONER/PLAINTIFF: -------------------------------------------- NOORUDEENKUTTY NIZAR NOORUDEEN, DARUNOOR, PADANAYAR KULANGARA VADAKKUM MURI, KARUNAGAPPALLY VILLAGE. ADV. SRI.P.B.SURESH KUMAR SRI.LEO GEORGE SRI.K.P.SUJESH KUMAR SRI.K.N.SASIDHARAN NAIR THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 26/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A. NO.4428/2009 & 588/2010 IN FAO NO.325/2009 DISMISSED 26/3/2010 SD/- PIUS C.KURIAKOSE, JUDGE. SD/- C.K.ABDUL REHIM, JUDGE, PIUS C. KURIAKOSE & C.K. ABDUL REHIM, JJ. ------------------------------------------ FAO. No. 325 of 2009 ------------------------------------------- Dated this the 26th day of March, 2010 J U D G M E N T Pius C. Kuriakose, J. Under challenge in this appeal is the order of the Subordinate Judge, Attingal dismissing the application filed by the appellant petitioner who was defendant in a suit for money for setting aside the ex parte decree that was passed against him after condoning the delay of 448 days caused in the matter of filing that application. The appellant petitioner was served with suit summons as envisaged under Order V Rule 20 CPC by publication in Kerala Kaumudi daily. The court below did not become inclined to accept the explanation of the appellant that he did not come across the notification regarding the pendency of the suit published in Kerala Kaumudi. We also are of the view that the explanation of the appellant is not convincing having regard to the circulation that Kerala Kaumudi Newspaper is having FAO. 325/09 - 2 - in the area where the appellant ordinarily resides. We are not impressed either by any of the grounds raised in this memorandum of appeal. At the same time, we take into account the policy of law that as far as possible causes should be allowed to be adjudicated on merits rather than decided on technicalities. In view of that policy we feel that relief can be granted to the appellant on stringent terms. The result of the appeal therefore will be as follows: The order under appeal is set aside and the IA filed by the appellant will stand allowed subject to the following conditions. 1) The appellant deposits the sum of Rs.2,98,383/- certified as the plaintiff's costs under the ex parte decree passed against him before the court below on or before 17- 5-2010. 2) The appellant pays a sum of Rs.15,000/- as cost to the respondent either directly or through his Advocate in FAO. 325/09 - 3 - this court on or before 5-4-2010. 3) The appellant pays a further amount of Rs.5000/- to the High Court Legal Services Committee on or before 5- 4-2010. Receipts against payment of items 2 and 3 will be produced by the appellant before the court below and only thereupon will this judgment become operative. If payments and deposit are not made the FAO will stand dismissed confirming the impugned order. PIUS C.KURIAKOSE, JUDGE C.K. ABDUL REHIM, JUDGE ksv/-