A. Zeenath vs A. Laila and Others

Thottathil B. Radhakrishnan, J.—This appeal is against an order by which the court below refused to set aside an ex-parte decree. The application seeking such relief was filed within the period prescribed by law. The plea of the Appellant/Defendant was that she was sick on 1.12.2008, the day on which the suit stood posted for trial. She filed an affidavit to that effect. In opposition, the Plaintiffs had filed statement of objections, wherein they refuted that the Defendant is sick. The suit is for partition. The plea of the Defendant is that the subject matter of the suit is not partible. As against the affidavit of the Defendant asserting that she was sick, there is no contra affidavit. Under such circumstances, the court below should have taken a lenient approach and ought to have granted the relief.

In the result, this appeal is allowed on condition that the Appellant will pay to the Respondent a sum of Rs. 3,500/- as costs within a period of three weeks. If such cost is paid, the impugned order will stand set aside and I.A.29 of 2009 in O.S. 497 of 2006 of the Principal Sub Court, Kollam will stand allowed. The court below will thereupon list the matter for trial.