High Court Kerala High Court

Susanna vs Chacko on 9 October, 2007

Kerala High Court
Susanna vs Chacko on 9 October, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

FAO No. 62 of 2006()


1. SUSANNA, M.KOMASINI 21, 6500,
                      ...  Petitioner
2. FRANCIS BORSIA, S/O.JOSEPH,

                        Vs



1. CHACKO, S/O.PHILIPOSE,
                       ...       Respondent

                For Petitioner  :SRI.P.C.HARIDAS

                For Respondent  :SRI.JOHN JOSEPH VETTIKAD

The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice V.K.MOHANAN

 Dated :09/10/2007

 O R D E R
                   P.R. RAMAN & V. K. MOHANAN, JJ.
                  = = = = = = = = = = = = = = = = = = = =
                           F.A..O. NO. 62 OF 2006
                        = = = = = = = = = = = = = = =

           DATED THIS, THE 9TH DAY OF OCTOBER, 2007.

                              J U D G M E N T

Raman, J.

This is an appeal against the order dated 5.11.2005, passed in I.A.

NO. 878/2005 in O.S. 65/1998 of the Sub Court, Pala dismissing the

application filed under Order 9 Rule 13 of the Code of Civil Procedure for

setting aside the ex parte decree.

2. The appellants are defendants in the said suit. The second

appellant is the Power of Attorney Holder of the first appellant who is also

arrayed as a defendant in the suit. The suit is one for specific performance.

When the suit was posted for trial, after repeated adjournments, on 1.6.2005

on behalf of the defendants, the counsel submitted no instruction. The

plaintiff was examined; the defendants’ counsel did not cross examine him

and the suit was decreed. thereafter, the application was filed to set aside

the ex parte judgment and decree. The reason advanced in support of the

application was that the first appellant was laid up seriously and she was at

Switzerland at the relevant time and hence she could not appear before the

FAO 62/2006 :2:

court. If as a matter of fact, the first appellant was laid up certainly, that

would have been a justifiable ground for setting aside the ex parte order.

The question is as to whether the first appellant was able to convince the

court and whether the jurisdiction exercised by the court below on the

materials available can be faulted?

3. Except an affidavit is filed, no medical certificate is produced.

Not even the nature of ailment suffered by the first appellant is stated in the

affidavit. Therefore, one is unable to find whether the appellant was

prevented by sufficient cause from appearing in court and was actually

suffering from any ailment. It is in such circumstances, the court below

being not convinced of the reason advanced in the absence of materials

produced and dismissed the application. It is against that order, that the

present appeal is filed.

4. Atleast along with the appeal, the appellants could have produced

a medical certificate or stated the reasons or the nature of her ailment.

Unfortunately, even that is not done. In these circumstances, we are unable

to hold that the discretion exercised by the court below in dismissing the

FAO 62/2006 :3:

application is in any way arbitrary or illegal, liable to be interfered in this

appeal. We find no merit in the appeal.

It is accordingly, dismissed.

P.R. RAMAN,
(JUDGE)

V. K. MOHANAN,
(JUDGE)

knc/-