## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE**
## **&**
**THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN TUESDAY, THE 4[TH] DAY OF APRIL 2023 / 14TH CHAITHRA, 1945 FAO NO. 15 OF 2023**
**ORDER DATED 21.01.2023 IN IA 1/2022 & 14/2022 IN OS 58/2011 OF SUB COURT, TIRUR**
## **APPELLANT/PETITIONER/DEFENDANT:**
ASHARAF PADINJARAYIL, AGED 50 YEARS, S/O.KUNHABDULLA PUTHANPURAYIL, PO.THALIYIL, VIA.KUTTIYADI, THALEEKARA VILLAGE, VADAKARA TALUK, KOZHIKODE TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER, MUHAMMED SARNAM, AGED 22 YEARS, S/O.ASHARAF PADINJARAYIL, PUTHENPURAYIL HOUSE, PO.THALIYIL, THALEEKKARA VILLAGE, VADAKARA TALUK, KOZHIKODE DISTRICT, PIN - 673508
BY ADVS. JAMSHEED HAFIZ K.K.NESNA T.S.SREEKUTTY
## **RESPONDENT/RESPONDENT/PLAINTIFF:**
MOHAMEDALI, AGED 69 YEARS, S/O.ALAVI HAJI, MALAYAM PALLI HOUSE, THRIKKULAM AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN - 676306
BY ADVS. PRAVEEN K. JOY E.S.SANEEJ(K-224/2014) M.P.UNNIKRISHNAN(K/293/2015) N.ABHILASH(K/000187/2017) DEEPU RAJAGOPAL(K/001444/2019)
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 04.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
FAO NO. 15 OF 2023
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## **JUDGMENT**
## SHOBA ANNAMMA EAPEN, J.
This appeal is filed under Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908 against the orders dated 21.01.2023 passed by the Sub
Court, Tirur, in I.A.Nos.1 of 2022 and 14 of 2022 in O.S.No.58 of 2011, which are the petitions to condone the delay of 2559 days in filing the petition to set aside the _ex parte_ decree and to set aside the _ex parte_ decree dated 08.09.2015.
2. The suit is for realisation of money. The
defendant in O.S.No.58 of 2011 on the file of the
Sub Court, Tirur is the appellant, represented by his son and Power of Attorney Holder - Muhammed Sarnam. The respondent is the plaintiff.
3. Heard the learned counsel for the appellant and the learned counsel for the
respondent.
4. The learned counsel for the appellant
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submits that in the money suit filed by the respondent/plaintiff, the appellant entered appearance and filed written statement. Thereafter, he left India in connection with an employment abroad and entrusted his relative to contest the case before the Sub Court, Tirur. Due to an inadvertent omission on the part of his relative, the suit was failed to be contested and the appellant/defendant was set _ex parte_ and an exparte decree was passed on 08.09.2015. The appellant came to know about the _ex parte_ decree only when his properties were attached pursuant to the proceedings in E.P.No.59 of 2019.
Immediately, the appellant, through a lawyer, filed I.A.No.14 of 2022 to set aside the _ex parte_ decree along with I.A.No.1 of 2022 to condone the delay of 2559 days in filing the petition to set aside the _ex parte_ decree. It is submitted that the court below, in a perverse manner, dismissed the petitions filed by the appellant. The learned counsel for the appellant further
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submitted that the court below did not appreciate the fact that the appellant could not effectively contest the suit since he was employed abroad and that the court below ought to have taken a liberal view while considering the application to set aside the _ex parte_ decree. It is further submitted that the appellant has a very good case and he may be given an opportunity to contest the case on merit.
7. _Per Contra_ , the learned counsel for the
respondent resisted the contentions stating that the appellant appeared before the court on receipt of summons in the suit and filed written statement and hence, was aware of the proceedings and pendency of the suit before the court. According to the learned counsel for the
respondent, the appellant had deliberately kept away from court and consequently, the _ex parte_ decree was passed. It is further contended that after passing the _ex parte_ decree, the appellant arrived in India several times, but did not care
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to enquire about the status of the suit and thus, suffered the decree. Hence, according to the learned counsel for the respondent, the court below is justified in dismissing the petitions and thus, the appeal is liable to be dismissed.
8. We have gone through the impugned order. The case of the appellant before the court below was that after the filing of the written statement, the appellant left India in connection with his job at Dubai and the matter was entrusted to his close relative. When the case came up on 08.09.2015, the relative, who was entrusted with the case, failed to attend the
court on 08.09.2015, consequent to which, an _ex parte_ decree was passed on the same day. It is only when the properties belonging to the appellant were attached in the execution petition, the appellant came to know about the passing of the decree in the above suit. Thereafter, he filed applications for setting aside the _ex parte_ decree as well as the petition
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to condone the delay in filing the above petition. PW1, the power of attorney holder and son of the appellant; and PW2, who is stated to be the relative of the appellant, were examined. During cross examination of PW2, he was not aware
of the number of the case, which was entrusted to him; the court, in which the case was pending; the contentions of the appellant/defendant in that case; and the name of the plaintiff, who
filed the suit against the defendant. It is to be
noted that the name of the relative, to whom the case was entrusted, was not disclosed in the
petition filed by the appellant and it is only an afterthought that the name of the witness was disclosed later. But, it is clear from the
proceedings that PW2, during cross examination, was not aware of the case number or other details entrusted to him. Moreover, Ext.A1 passport of the appellant produced before the court would show that after 08.09.2015, the appellant came to Kerala on five occasions, i.e., on 30.10.2015,
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03.12.2015, 28.12.2015, 01.08.2016 & 05.09.2016. In the petition filed by the appellant/defendant, it was stated that he came to Kerala in 2015 in connection with the disease of his relative and remained in Kerala only for a few days. But, it is a fact that he was aware of the case pending before the court, in which he appeared and filed written statement. Moreover, he was in Kerala on five occasions and he did not care to enquire about the case or to file any petition to set aside the _ex parte_ decree.
9. In **Esha Bhattacharjee** v. **Managing**
**Committee of Raghunathpur Nafar Academy and**
**others** [(2013) 12 SCC 649], the Apex Court, while summerising the principles applicable while dealing with an application for condonation of delay, held that the concept of liberal approach has to encapsulate the conception of
reasonableness and it cannot be allowed a totally
unfettered free play. The Apex Court further held that there is a distinction between inordinate
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delay and a delay of short duration or few days, for to the former doctrine of prejudice is
attracted, whereas to the latter, it may not be attracted. That apart, the first one warrants strict approach, whereas the second calls for a
liberal delineation.
10. The cause explained by the
appellant/defendant does not appear to be
convincing. He had several opportunities to enquire about the case and to file the
application on time. The only reason pleaded by the appellant to condone the inordinate delay of
2559 days in filing the application to set aside the _ex parte_ is that he was working abroad and the relative, to whom the case was entrusted,
failed to follow up the case with the lawyer.
The intention of the appellant is only to protract the matter by not allowing the plaintiff to enjoy the fruits of the decree. It is after seven years of the passing of the decree, the appellant has filed the petitions. The reasons
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stated by the appellant are not found to be
satisfactory. The court below, after considering
the matter in detail, found that there was no sufficient reason to condone the delay in filing
the application to set aside the _ex parte_ decree
and hence, the petitions were dismissed. Suffice it
to say that the prayer for condoning the delay in
filing the application for setting aside the _ex_
_parte_ decree can only be declined in the above
circumstances and hence, the petition to set aside
the _ex parte_ decree is also to be dismissed.
We, therefore, hold that the impugned orders do
not suffer from any infirmity or illegality. We,
accordingly, dismiss the appeal.
## **Sd/-**
## **A. MUHAMED MUSTAQUE**
## **JUDGE**
## **Sd/-**
## **SHOBA ANNAMMA EAPEN**
## **JUDGE**
bka/-
