IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 13 of 2008()
1. THOMAS VARGHESE, S/O.C.V.VARGHESE,
... Petitioner
Vs
1. PADMINI GOPALAKRISHNAN,
... Respondent
For Petitioner :SRI.O.RAMACHANDRAN NAMBIAR
For Respondent :SRI.BINOY VASUDEVAN
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :04/08/2009
O R D E R
P.R. RAMAN & P. BHAVADASAN, JJ.
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F.A.O. No. 13 of 2008
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Dated this the 4th day of August, 2009.
JUDGMENT
Raman, J,
This is an appeal against an order dismissing the
application seeking to set aside the ex-pare decree passed against
the defendant-appellant. The suit is one for recovery of amount
due from the defendant. The suit was listed to 22.8.2006. The
power of attorney holder, who filed the suit was laid up due to
chicken-pox and he could not give necessary instructions to the
counsel to conduct the case or for cross-examining the plaintiff.
Obviously the suit itself was contested by the defendant through
the power of attorney holder. But when the case was listed, the
defendant being absent, he was declared ex-parte. Therefore, when
the defendant himself had entrusted the matter to the power of
attorney holder, who happened to be absent, the question to be
considered is whether this is a fit case where the ex-parte decree is
to be set aside.
2. The court below found that when the matter was
F.A.O. 13/2008. 2
posted for evidence, petitioner was absent. It was recorded by the court
below that on the day on which the petition was posted for evidence,
petitioner was absent and no affidavit was filed in support of the
contention raised. The respondent also did not adduce any evidence
and the matter was heard. But the learned counsel appearing for the
appellant showed us the proceedings sheet to show that even though
the petitioner was absent when the case was called, subsequently he
turned up. So it is not a case where he absented himself totally from
appearing. The court could have then and there asked him to give
evidence and proceed accordingly. In the circumstances, we feel that
an opportunity ought to have been given to the petitioner to contest the
matter on merits.
3. After hearing both sides, in the factual situation as
noticed above and taking a lenient view, we allow this appeal on terms.
Accordingly, the appeal will stand allowed in case the
appellant pays an amount of Rs.3,000/- by way of costs to be paid to
the respondent through counsel before this court within a period of two
weeks from today. On such payment, the suit will stand restored to file
F.A.O. 13/2008. 3
and the court below will dispose of the matter in accordance with law
after hearing both sides. In case of default in making the payment, the
appeal will stand dismissed. The parties shall appear before the court
below on 7th September, 2009.
P.R. Raman,
Judge
P. Bhavadasan,
Judge
sb.