Ajith Kumar M.R. v. Rosamma

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 9TH DAY OF OCTOBER 2017/17TH ASWINA, 1939** **OP(C).No. 3709 of 2011 (O) --------------------------IA NO.114/2011 IN OS 184/2008 of SUB COURT, CHENGANNUR -----------** **PETITIONER/PLAINTIFF :** **AJITH KUMAR M.R., AGED 41 YEARS, S/O. RAMANCHANDRAN NAIR, MANNADICKAL HOUSE, MAMPRA MURI, CHERIYANADU VILLAGE, CHENGANNUR TALUK.** **BY ADV. SRI.N.ASHOK KUMAR** **RESPONDENT/DEFENDANT :** **ROSAMMA, W/O BABU, MULAYIL PUTHEN VEETTIL, MAMPRA MURI, CHERIYANADU EAST, CHERIYANADU VILLAGE, CHENGANNUR, PIN 689511.** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 09-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** ## **OP(C).No. 3709 of 2011 (O)** ## **---------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **---------------------** **P1: COPY OF PLAINT IN OS NO.184/2008 OF SUB COURT, CHENGANNUR.** **P2: COPY OF PETITION DT 5?6/2010 AS IA 317/2010 IN OS NO.184/2008 SUB COURT, CHENGANNUR.** **P3: COPY OF PETITION AS IA NO.316/2010 IN OS 184/2008 SUB COURT, CHENGANNUR.** **P4: COPY OF PETITION AS IA NO.114/2011 IN OS NO 184/2008 SUB COURT, CHENGANNUR.** **P5: COPY OF ORDER DT 23/7/2011 IN IA 114/2011 IN OS 184/2008 OF SUB COURT, CHENGANNUR.** ## **RESPONDENT'S EXHIBITS :** **NIL.** **//TRUE COPY//** **P.A. TO JUDGE** **bp** ## **ANIL K. NARENDRAN, J.** ## **----------------------------------------------O.P(C) No.3709 of 2011 -----------------------------------------------** Dated this the 9[th] day of October, 2017 ## **J U D G M E N T** This Original Petition is filed by the petitioner, who is the plaintiff in O.S.No.184/2008 on the file of the Sub Court, Chengannur, seeking an order to set aside Ext.P5 order dated 23.7.2011, whereby I.A.No.114/2011 filed in O.S.No.184/2008, an application under Order IX, Rule 9 of the Code of Civil Procedure, 1908, seeking an order to restore I.A.No.317/2010 in O.S.No.184/2008 stands rejected. 2. On 16.11.2011 this Court admitted the matter on file and issued notice to the respondent by speed post. The petitioner was also directed to serve notice on the counsel for the respondent before the trial court. 3. Despite service of notice by affixture, none appeared for the respondent. 4. The sole issue that arises for consideration in this Original Petition is as to whether Ext.P5 order passed by the court **O.P(C) No.3709 of 2011** :-2-: below warrants interference, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. 5. Ext.P5 order is one passed by the court below in I.A. No.114/2011, an application filed by the petitioner seeking an order to restore I.A.No.317/2010 in O.S.No.184/2008, which was dismissed for default. I.A.No.317/2010 is one filed by the petitioner under Order IX Rule 9 of the Code, seeking an order to set aside the order dated 18.3.2010 by which the suit was dismissed for non prosecution. 6. A reading of Ext.P5 order would show that, after completing pre trial steps, O.S.No.184/2008 was listed for trial on 21.2.2009. The petitioner filed an application to remove the suit from the list, since he could not avail leave from Gulf. The said application ended in dismissal and accordingly, the suit was dismissed for non prosecution. Thereafter, the petitioner filed an application under Order IX, Rule 9 of the Code, which was supported by the affidavit of his counsel. That application was also dismissed. Later, the suit was restored as per the order of this Court in F.A.O. No.176/2009, on payment of a cost of 2,000/-.₹ **O.P(C) No.3709 of 2011** :-3-: 7. The suit was again listed for trial on 17.3.2010. Before listing, the petitioner was permitted to prosecute the suit by his power of attorney holder. On 17.3.2010, the petitioner filed an application to remove the suit from the list, stating that he has to report for duty and that, his power of attorney holder is laid up. In support of the said facts, no materials were produced before the court. Hence that application was dismissed and the suit was listed for trial to 18.3.2010. Since the petitioner and his power of attorney holder were absent on that day, the suit was again dismissed. The respondent/defendant was also absent. 8. The petitioner filed another application under Order IX Rule 9 of the Code. Since the respondent/defendant went abroad, she was set ex parte after effecting service of notice by paper publication in Malayala Manorama daily having circulation in Gulf countries. Thereafter, the case was posted for hearing with back records. Though two postings were given, the petitioner and his counsel were absent and the application filed under Order IX Rule 9 of the Code was again dismissed for default. For restoring that application, the petitioner filed I.A.No.114/2011 stating that, ## **O.P(C) No.3709 of 2011** :-4-: there occurred a mistake in noting the posting date by the Advocate Clerk. After perusing the entire back records, the court below found that the petitioner was not vigilant in prosecuting the case and that, suit is nothing but an abuse of process of the court. The court below has also found that, despite giving sufficient opportunities, the petitioner tried to delay the matter. 9. In **G.P. Srivastava v. R.K. Raizada [(2000) 3 SCC** **54]** the Apex Court, in the context of Order IX, Rule 13 of the Code of Civil Procedure, held that the word 'was prevented by any sufficient cause from appearing' occurring in Order IX, Rule 13 of the Code must be liberally construed to enable the Court to do complete justice between the parties, particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order IX, Rule 13 of the Code has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. 10. In **G.P. Srivastava's case (supra)** , the Apex Court **O.P(C) No.3709 of 2011** :-5-: held further that, 'sufficient cause' for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If 'sufficient cause' is made out for nonappearance of the defendant on the date fixed for hearing when ex parte proceedings initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits. 11. In **M/s. Peeves Enterprises v. Muhammed Ashraf** **(2015 (3) KHC 981)** , relying on the law laid down by the Apex Court in **G.P. Srivastava's case (supra)** , a Division Bench of this Court held that, on an application filed under Order IX, Rule 13 of the Code of Civil Procedure, 1908, the court has to find out whether the erring party has made out sufficient cause for setting **O.P(C) No.3709 of 2011** :-6-: aside the ex parte decree. When no negligence or inaction is imputable to the erring party and the absence was not mala fide or intentional, the discretion has to be exercised in his favour, especially when the application is within the statutory time limit. In appropriate cases, the plaintiff can be compensated by adequate costs for the loss of time and the inconvenience caused to him. But any such condition shall not be too onerous. 12. Though there is some laches on the part of the petitioner/plaintiff in prosecuting O.S.No.184/2008, considering the facts and circumstances of the case, in the light of the law laid down in the decisions referred to supra, I deem it appropriate to set aside Ext.P5 order, on payment of cost. In the result, this Original Petition is disposed of setting aside Ext.P5 order of the court below dated 23.7.2011 in I.A. No.114/2011 in O.S.No.184/2008, on payment of cost of ₹10,000/-, payable to the respondent/defendant. The petitioner/ plaintiff shall deposit the said amount before the court below, within a period of one month from the date of receipt of a certified copy of this judgment. On such payment being made, the court **O.P(C) No.3709 of 2011** :-7-: below shall consider I.A.No.317/2010 and also I.A.No.316/2010, the application for condonation of delay, on merits and pass appropriate orders thereon, with notice to the petitioner/plaintiff and the respondent/defendant. **Sd/ANIL K. NARENDRAN JUDGE** ab