Kerala High Court
Seenamol Abraham vs Sleeba Thomas
Author: P.V. Asha
Bench: T.R.Ramachandran Nair, P.V.Asha
IN THE HIGH COURT OF KERALAATERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR
&
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 8TH DAYOF JULY 2014/17TH ASHADHA, 1936
FAO.No. 381 of 2012
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AGAINST THE ORDER DATED 16.08.2012 IN I.A. No. 1594 OF 2011 IN O.S. NO. 36 OF
2011 ON THE FILE OF THE SUB COURT,PALA
APPELLANTS/PETITIONERS/DEFENDANTS 1 TO 3: -
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1. SEENAMOL ABRAHAM, D/o ABRAHAM,
KUNNAPPILLIL HOUSE, MULAPPURAM P.O.,
KARIMANNOOR, THODUPUZHA, IDUKKI DISTRICT.
2. K.J.CHACKO AGED 57 YEARS,
KUNNAPPILLIL HOUSE, MULAPPURAM P.O.,
KARIMANNOOR, THODUPUZHA, IDUKKI DISTRICT.
3. K.J.JOHN, AGED 55 YEARS,
KUNNAPPILLIL HOUSE, MULAPPURAM P.O.,
KARIMANNOOR, THODUPUZHA, IDUKKI DISTRICT.
BY ADVS.SRI.M.B.SANDEEP
SRI.S.SREEDEV
RESPONDENTS/PLAINTIFFS 1& 2 / DEFENDANTS 4 TO 10 : -
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1. SLEEBA THOMAS, AGED 50YEARS,
S/O. THOMAS, MURIMATTATHIL, PUTHRIKKA KARA,
KOLENCHERY,
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER VIJAYAN,
AGED 44, S/O. MADHAVAN,
PALKKUZHIYIL HOUSE, VADAMBADY,
AIKKARANADU SOUTH VILLAGE,
ERNAKULAM DISTRICT, PIN-682308.
2. P.PAULOSE, AGED 58 YEARS,
PALOATH HOUSE, KOLENCHERY P.O,
ERNAKULAM DISTRICT, PIN-682311.
FAO.No. 381 of 2012
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3. BIJU P.SEBASTIAN, AGED 36 YEARS,
ADVOCATE, CITY TOWER, BY PASSROAD,
CITY TOWER, BYE PASS ROAD, PARAYAN NILAM HOUSE,
KARIMANNOR, THODUPUZHA, IDUKKI DISTRICT, PIN-685584.
4. NAZEER, POLICE CONSTABLE,
KALIYAR POLICE STATION, KALIYAR,
THODUPUZHA, IDUKKI DISTRICT, PIN-685584.
5. KAREEM, POLICE CONSTABLE,
NOW WORKING ATKARIMANNOOR POLICE STATION,
KARIMANOOR, THODUPUZHA, IDUKKI DISTRICT, PIN-685584.
6. V.N.SAJI, CIRCLE INSPCTOR OF POLICE,
KALIYAR, THODUPUZHA, IDUKKI DISTRICT, PIN-685584.
7. ABY GEORGE, SUB REGISTRAR,
KARIKODE SRO, KARIKODE,
THODUPUZHA, IDUKKI DISTRICT, PIN-685584.
8. STATE OF KERALA,
REPRESENTED BY DISTRICT COLLECTOR,
IDUKKI DISTRICT, PIN-685584.
9. KURIAKOSE, S/O. CHACKO,
KOTTARATHIL (H), ELANADU P.O.,
AMBALOOR, THRISSUR DISTRICT, PIN-680586.
R4 TO R8 BY GOVERNMENT PLEADER SRI. P. PADMALAYAN
R1,R2 BY ADV.SRI.PAULK.VARGHESE
THIS FIRST APPEALFROM ORDERS HAVING BEEN FINALLYHEARD ON
08-07-2014, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING:
DMR/-
T.R. RAMACHANDRAN NAIR
&
P.V. ASHA, JJ.
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F.A.O. No. 381 of 2012
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Dated this the 8th day of July, 2014.
JUDGMENT
T.R. Ramachandran Nair, J.
This appeal is filed by the defendants in a suit for setting aside a document, declaration of title, mandatory and prohibitory injunction and for damages filed by the respondents herein. It was decreed ex parte and even though an application was filed to set aside the ex parte decree as I.A. No. 1594/12, the same was dismissed by the Court below by the impugned order.
2. We heard learned counsel on both sides.
3. Learned counsel for the appellants submitted that in the nature of the decree sought for one more opportunity may be granted to the appellants so as to have a decision on the merits of the matter.
F.A.O. No. 381 of 2012 2
4. The application was filed by the appellants stating that due to viral fever the first appellant could not appear before the Court and he could not contact the counsel also. The Court below, while considering the matter was of the view that in the absence of production of medical certificate and the absence of any explanation on the part of the defendants 2 and 3 to appear before the Court on 06.06.012, there is no merit in the application.
5. Learned counsel for the appellants submitted that the reason shown is genuine and therefore the Court could not have adopted a technical view in the matter. We are of the view that one more opportunity can be granted to the appellants to contest the case on merits in the light of the prayers sought for in the suit. Accordingly, we allow the appeal and set aside the order in I.A No. 1594 of 2011 in O.S. No. 36 of 2011 on condition that the appellants will pay an amount of Rs.3,000/- as costs to the plaintiff/ first respondent herein within a period of three weeks from today. The costs will be paid to the learned counsel for the first F.A.O. No. 381 of 2012 3 respondent appearing before this Court and a memo will be filed before this Court. The parties will appear on 18.08.2014 before the Court below.
T.R. RAMACHANDRAN NAIR JUDGE P.V. ASHA JUDGE DMR/-