Juby M.Varghese v. Joshy C.N.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE SMT. JUSTICE P.V.ASHA FRIDAY, THE 9TH DAY OF OCTOBER 2015/17TH ASWINA, 1937 FAO.No. 208 of 2015 -------------------------- AGAINST THE ORDER IN I.A.No.268/15 & 269/15 in OS 193/2010 of SUB COURT, PERUMBAVOOR DATED 19.8.2015 APPELLANT/PETITIONERS/DEFENDANTS:
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1. JUBY M.VARGHESE S/O M.I.VARGHESE MOROTHIL HOUSE, KARIMUGAL PUTHENCRUZ P O, KUNNATHUNADU TALUK 2.
M.I.VARGHESE, S/O ITTAN, MOROTHIL HOUSE, KARIMUGAL PUTHENCRUZ P O, KUNNATHUNADU TALUK BY ADVS.SRI.B.S.SWATHY KUMAR SRI.REMYA MURALI SRI.ASHISH MOHAN SMT.T.RESHMA RESPONDENT/PLAINTIFF:
----------------------------------- JOSHY C.N.
S/O LATE MADHAVAN, CHIRAYIL HOUSE, PADINJARUM KARA, ATHIRAMPUZHA VILLAGE, ETTUMANOOR PO KOTTAYAM, PIN 686 631.
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 09-10-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ANTONY DOMINIC & P.V.ASHA, JJ.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O.No.208 of 2015 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of October, 2015
JUDGMENT
Antony Dominic, J.
This appeal is filed against the order passed by the Sub Court, Perumbavoor dismissing I.A.No.268/15 and 269/15 in O.S.193/2010. By the said order, the court below has rejected the applications made by the appellants to set aside the ex parte decree passed against them and to condone the delay of 430 days in filing the said application.
2. We heard the counsel for the appellants and considered the submissions made.
3. Although it is the contention of the appellants that it was on account of the sickness of the first and second appellants that they happened to be absent when the case was called and that the delay has occurred, the contents of the order impugned shows that on an earlier occasion, in similar circumstances, the suit was decreed ex parte on 17.6.2011 and the applications made by the appellants to set aside the said decree was allowed and the suit was restored to file. It was thereafter that the case was taken up for trial on 6.12.2013, when the counsel for the appellants reported no instructions and accordingly the suit was decreed
F.A.O.No.208 of 2015 : 2 :
ex parte on 18.12.13. Even apart from the fact that in regard to the claim that the appellants were sick is concerned, we find that the said claim was also not substantiated by any acceptable evidence, there is also no explanation why their alleged sickness and consequential inability to be present in court were not conveyed to their counsel.
4. In such circumstances, we fully agree with the court below that the appellants did not succeed in establishing any satisfactory explanations to justify the prayers made.
Appeal fails and it is accordingly dismissed. Sd/- ANTONY DOMINIC JUDGE Sd/- P.V.ASHA JUDGE jes