Harilal, J.
The appellant is the respondent in O.P. No.256/08 on the files of the Family Court, Thrissur, filed by the respondents herein. The 1st respondent is the wife and the 2nd respondent is his daughter. The above O.P. was filed for realisation of money as value of gold ornaments and for return of money spent by her for conducting the marriage of her eldest daughter as well as for past and future maintenance. The appellant was set ex parte on 16/8/2010. According to him, he is an asthma patient and during the pendency of the case he was admitted in the Medical College Hospital on various occasions. Hence he could not conduct the case properly by filing a counter affidavit. He is not an educated man and, as he is an illiterate person, he was not aware of the consequences of the case. He came to know about the decree and its consequences only when his wife, the 1st respondent, told the neighbours that the property will be sold in auction for realisation of the decree amount. Then only he realised the seriousness of the ex parte order. Immediately, he approached his counsel, who is appearing for him in the lower court, and filed I.A. No.5700/11 to set aside the ex parte decree dated 16/8/2010 and I.A. No.5701/11 to condone the delay of 390 days in filing the petition. But the court below dismissed both the applications by the impugned order under challenge. The legality and propriety of the said order dismissing both the applications are under challenge in this Mat. Appeal.
2. The learned counsel for the appellant submits that the court below has not considered the reason for delay in filing the application to set aside the ex parte decree in its correct perspective. According to him, there was sufficient cause for his absence and the delay was properly explained. The appellant was not negligent in causing the delay and there is no finding to that effect also.
3. Per contra, the learned counsel for the respondents submits that the reason for delay has not been properly explained in the application for condonation of delay. That apart, the appellant was well aware about the proceedings which were going on before the court below. Earlier, the counsel for the appellant has sought for time for filing a counter affidavit. But, thereafter, the counter affidavit has not been filed. In the absence of the counter affidavit, denying the allegations in the Original Petition, the court below decreed the suit ex parte.
4. In view of the rival contentions raised before us, the short question that arises for consideration is whether the reason for delay has been explained properly in the application for condoning the delay?
5. Going by the impugned order under challenge, it could be seen that the appellant, who appeared in O.P. on 14/3/2008, did not file any counter affidavit after the termination of the counseling and sought for time for filing counter. On the request of the appellant, the case was posted to 19/7/2009 and on that day the counsel appearing for the appellant submitted that the counter affidavit was being filed by him. So the case was again posted for evidence. But, on verification, it was seen on the posting date that no counter has been filed and thereafter the case was posted for appearance of parties on 6/7/2010. On that day, the appellant remained absent. So he has set ex parte and the Original Petition was posted for evidence. On the next posting date also there was no representation and the respondent herein filed affidavit and the petition was thus allowed ex parte.
6. Going by the sequence of events after the appearance of the appellant before the trial court, it could be seen that the appellant had been given sufficient opportunities to file a counter affidavit denying the allegations in the Original Petition. In spite of granting sufficient opportunities, the appellant has not filed any counter affidavit. So also, he was absent on the day when the case was posted for appearance of the appellant. In that context, the court below set him ex parte. In the above circumstances, we are unable to find fault with the court below for decreeing the suit ex parte
7. But we are inclined to take a lenient view in a different perspective. Adjudication of a lis on merits is always desirable than dismissal on technicalities. So also, When substantial justice and technical considerations are pitted against each other, substantial justice deserves to be preferred rather than technical considerations. But, at the same time, we find that the appellant was negligent in prosecuting the matter, though not willful. In the above view, we are of the opinion that the appellant can be given further opportunity to contest the Original Petition on merits on terms.
Consequently, the impugned order under challenge will stand set aside on condition that the appellant deposits half of the decree amount before the court below within a period of one month from today, failing which the impugned order under challenge will stand in force. On compliance of the above condition, the court below shall restore the Original Petition on the files, proceed in accordance with law, and shall be disposed of at the earliest, at any rate, within a period of three months from the date of production of a copy of this judgment, after affording opportunities to both parties to adduce evidence. The parties shall appear before the trial court on 1/12/2014.
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(V.K.MOHANAN, JUDGE)
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(K.HARILAL, JUDGE)
okb //true copy// P.A. to Judge