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.
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F.A..O. NO. 62 OF 2006
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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/-