IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931 FAO.No. 73 of 2008() -------------------- AGAINST THE ORDER DATED 30/11/2007 IN IA 1982/07 & IA 1983/07 IN OS.398/2001 of ADDL.SUB COURT, PALAKKAD .................... APPELLANT/PETITIONER/DEFENDANT ---------------------------------------- JAYAPRAKASH, S/O.KRISHNAN NAIR RESIDING AT DWARAKA, SEKHAREEPURAM MALAMPUZHA 100 FEET ROAD, PUTHUR AMSOM PALAKKAD TALUK. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): RESPONDENTS/PLAINTIFFS ------------------------------------- 1. KRISHNAN NAIR, S/O.KESAVAN NAIR RESIDING AT DWARAKA, SEKHAREEPURAM PUTHUR AMSOM, PALAKKAD TALUK. 2. CHINNAMMU, W/O.KRISHNAN NAIR RESIDING AT DWARAKA, SEKHAREEPURAM PUTHUR AMSOM, PALAKKAD TALUK. ADV. SRI.RAJESH SIVARAMANKUTTY FOR RPTS. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 15/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO NO.73 OF 2008 -------------------------------------------------------- Dated 15th July 2009 Judgment RAMAN, J. This is an appeal against the order dismissing a petition filed under Order IX Rule 13 CPC, consequent upon the dismissal of the petition for condonation of delay in filing the same. The appellant is the defendant in the suit. The suit is one for partition, instituted by the father and mother of the appellant. On the appointed day, the appellant was absent. He came to know of the ex parte decree passed, only later. In the meantime, delay of 114 days occurred. It was his explanation that the post card said to have been sent by his Advocate was not received by him as he was away from his house in connection with his employment. The court below did not reject the contention as such, but found fault with the appellant for not furnishing the address to the post office. 2. The question as to whether the appellant should have taken steps to intimate the address to the Post Office, is a different question. May be it is a mistake on his part. But still, the question would be whether he had knowledge about the decree. When he says that he did not receive the intimation from his Advocate and in the absence of any contra evidence, it should have been accepted. At any rate, he was not a chronic defaulter. FAO 73/08 2 But, it is pointed out that he was declared ex parte for the second time. In the factual circumstances, therefore, we feel that an opportunity could be given to the appellant, but only on terms. Accordingly, we set aside the order passed by the court below and allow this appeal on condition that the appellant shall deposit a sum of Rs.5,000/- (Rupees Five Thousand only) before the court below or pay the same to the respondents towards costs, within one month from today, failing which the appeal will stand dismissed and no further enlargement of time will be entertained. In case the amount is deposited as directed above, the suit will stand restored and the court below shall expedite disposal of the suit, at any rate, within a period of six months from the date of such deposit. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta FAO 73/08 3