IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 305 of 2009()
1. RAJASEKHARAN NAIR,
... Petitioner
Vs
1. SREEDEVI @ SREEDEVI AMMA,
... Respondent
2. SREEDEVI @ CHEMBAKAVALLY THAMPURATTI,
For Petitioner :SRI.S.SANTHOSH KUMAR
For Respondent :SRI.M.R.HARIRAJ
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :19/01/2010
O R D E R
A.K.BASHEER & M.L.JOSEPH FRANCIS, JJ.
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F.A.O.No.305 OF 2009
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Dated this the 19th day of January 2010
JUDGMENT
Basheer, J.
Appellant is defendant No.1 in a suit for recovery of money. He was
absent on the day when the suit was taken up for trial. Consequently, he
was set ex-parte and the court below proceeded to pass an ex-parte decree
against him and his co-defendant.
2. Later, appellant preferred an application under Order 9 Rule 13
of the Code of Civil Procedure to set aside the ex parte decree contending
that he was prevented from attending the court on the crucial day, since
he was away in Chennai. More importantly, he was advised rest because
of his heart ailment. However, the court below refused to believe the
appellant and consequently dismissed the application. Hence, this appeal.
3. We have heard learned counsel for the appellant and
respondent/plaintiff. We have also perused the materials available on
record.
4. In the peculiar facts and circumstances of the case, we are unable
to agree with the view taken by the court below. In our view, the appellant
ought to have been given an opportunity to defend the suit. We are
satisfied that the order under challenge is liable to be set aside. We do so;
but of course on terms.
F.A.O.No.305 OF 2009
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5. The order under challenge shall be set aside on condition that the
appellant pays a sum of Rs.5,000/- as cost to the respondent/plaintiff within
two weeks from today. If the appellant fails to pay the said sum of
Rs.5,000/- within the time stipulated, this appeal will stand dismissed.
6. The court below shall dispose of the suit expeditiously after giving
sufficient opportunity to the plaintiff and defendants in accordance with
law.
Appeal is disposed of in the above terms.
A.K.BASHEER, JUDGE
M.L.JOSEPH FRANCIS, JUDGE
jes