IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933 RFA.No. 493 of 2011() --------------------- OS.347/2006 of II ADDL.SUB COURT,TRIVANDRUM .................... APPELLANTS/DEFENDANTS: -------------------------------- 1. RACHEL PATRICK, D/O.ROSALIN RICHARD,78, HURST DRIVE,WALTHAM CROSS,HERTSFORDSHIRE, UNITED KINGDOM REPRESENTED BY ROSALINE RICHARD, D/O.JOSEPHINE GOMEZ, JUPITER HOUSE, ST.ANDREW'S,ST.XAVIER'S COLLEGE P.O.KAZHAKKUTTAM, MEENAMKULAM VILLAGE,THIRUVANANTHAPURAM. 2. ROSALINE RICHARD, D/O.JOSEPHINE GOMEZ, JUPITER HOUSE, ST.ANDREW'S,ST.XAVIER'S COLLEGE P.O KAZHAKKUTTAM,MEENAMKULAM VILLAGE, THIRUVANANTHAPURAM.. BY ADV. SRI.V.SURESH RESPONDENT/PLAINTIFF ---------------------------- DEVARAJAN, S/O.RAMAKRISHNAN NADAR D.S.SADANAM, TC 8/165 CHERUVICKAL VILLAGE THIRUVANANTHAPURAM PIN 695 011. ADV. SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.ANEESH JAMES SR.ADV.S.SREEKUMAR THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13/12/2011, ALONG WITH RFA NO. 640 OF 2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.M.JOSEPH & A.M.SHAFFIQUE, JJ. * * * * * * * * * * * * * R.F.A.Nos.493 & 640 of 2011 ---------------------------------------- Dated this the 13th day of December 2011 J U D G M E N T K.M.JOSEPH,J Appellants are defendants in suits filed by the respondent seeking specific performance of contracts entered into between the parties. The trial court has decreed the suits ex parte. Hence the appeals. 2. We have heard the learned counsel for the appellants and the learned senior counsel for the respondent. The reasons stated apparently by the appellants are as follows: “The lower court settled issues on 15/7/2008. The suit was posted for pre-trial steps to 29/10/2008. The plaintiff submitted that he proposed to file commission application and hence the suit was being adjourned. Since the plaintiff did not take steps, the suit was posted for trial. However it was not included in the special list for trial. The suit came up on 6/9/2010. The court wanted to explore the possibility of a settlement and hence posted the suit to 8/9/2010. The 1st defendant and her sister Regal R.F.A.Nos.493&640 of 2011 2 Anthony are employed in England. The child of her sister Nathan Anthony was taken ill and advised to undergo a major surgery. In connection with the treatment, the 1st defendant wanted assistance from the 2nd defendant as well. Hence she had left for England in June 2010. She was in England on 6/9/2010. The counsel for the defendants submitted that the defendants are both in England and hence would not be able to come for any settlement talks on 8/9/2010. The court then adjourned the case to 7/10/2010 for settlement talks. In the meanwhile, the surgery of the child of the sister of the 1st defendant was postponed on medical advise that there were some complications. In these circumstances, the 2nd defendant was not able to return from England as she had originally planned. They informed this fact to their counsel. He submitted the said matter to the court which adjourned the suit to 28/10/2010 for settlement talks. The surgery of the child was again postponed on medical advice. However in view of the fact that the suit was being posted for the purpose of settlement talks, the 2nd defendant decided to travel back to India as soon as possible. She was able to secure tickets by Emirates Flight No.EK 008 R.F.A.Nos.493&640 of 2011 3 departing from Heathrow Airport at 8.50 AM (GMT) on 31/10/2010. She would have been in Thiruvananthapuram in the evening of 1/11/2010. The e-ticket, boarding pass, true copies of the passport pages and copies of the hospital intimations are produced along with a petition in this appeal. When the suit was taken up on 28/10/2010, the counsel for the defendants submitted these matters in court. The court disregarded the entreaty for another adjournment, even though the plaintiff did not oppose it. The court set the defendants ex parte and posted the case on 29/10/2010 for ex parte evidence. On behalf of the defendants, the counsel filed petition for review of the said order and to set aside the ex parte. The petition was before the court when the case was taken up on 29/10/2010. The court did not pass any order in the said petition. It marked the documents for the plaintiff as submitted in the proof-affidavit filed by the plaintiff and posted the suit for judgment on 30/0/2010. On that date the court delivered judgment without answering any of the issues. 3. The suits were filed for specific performance of contracts. We feel that, in the circumstances of the case, an R.F.A.Nos.493&640 of 2011 4 opportunity should be given to the appellants to contest their case and there must be an adjudicated decision. In such circumstances, we are inclined to allow the appeal on terms. Accordingly, we allow the appeals and set aside the impugned judgments subject to the condition that the appellants will pay a sum of Rs.10,000/- (Rupees ten thousand only) each to the learned counsel appearing for the respondent in this Court within a period of two weeks from today and produce a memo to that effect. 4. We further make it clear that the appellants will be liable to pay balance court fee in both these appeals within a period of two weeks from today. If the appellants do not comply with these conditions, the appeals will stand dismissed. If the appellants comply with the conditions, the court below will take up the suits and dispose of them finally on or before 30/06/2012. (K.M.JOSEPH, JUDGE) (A.M.SHAFFIQUE, JUDGE) jsr // True Copy// PA to Judge R.F.A.Nos.493&640 of 2011 5 In compliance with the direction in the common judgment dated 13/12/2011 in R.F.A.Nos.492/2011 and 640/2011, the appellant's counsel has paid Rs.10,000/- (Rupees ten thousand only) each to the learned counsel appearing for the respondent in this Court (vide memos c.f.no.2/2012 in R.F.A.493/2011 and c.f.No.3/2012 in R.F.A.640/2011 dated 02/01/2012) and remitted balance court fee in both the appeals, within the time stipulated. sd/- Registrar (Judicial) R.F.A.Nos.493&640 of 2011 6 R.F.A.Nos.493&640 of 2011 7 K.M.JOSEPH & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 30/082010