Ayisha and Others v. Parappur Valappil Fathimma and Others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.G. Arun
Judgment Date: 2021-10-06
Court Decision / Holding: Original petition allowed; Exts. P6 and P8 orders set aside; I.A Nos. 819 and 820 of 2014 allowed; petitioners to pay Rs. 25,000 as costs within six weeks; on receipt of payment and judgment copy, the trial court shall proceed with the suit and dispose of it within six months.
Final Disposition: Original petition allowed; ex parte decree set aside; CMA orders set aside; costs awarded; trial court directed to proceed and dispose of the suit within six months; merits-based adjudication mandated where appropriate.

Parties to the Case

Appellants / Petitioners

Ayisha
Subair
Suneera
Sakeer

Respondents

Parappur Valappil Fathimma
Saleena
Sharjihana
Sabna
Sailaaged
Sajna

Legal Representation & Advocates

Counsels for Petitioners

• K.P. Sudheer
• J. Ramkumar

Counsels for Respondents

• T.I. Abdul Salam
• K.R. Monisha

Case Synopsis & Summary

This Original Petition (OP(C) 1865/2018) challenges a judgment in CMA 5/2015 and the ex parte decree in O.S. 197/2006 from the Munsiff Court, Ponnani. The suit, filed by the predecessor in interest of the respondents, sought partition of three items of property. The third defendant appeared late; due to his illness and lack of instructions from counsel, the suit proceeded ex parte and a decree was passed against him. He moved to set aside the ex parte decree after a prolonged delay of about 640 days; the trial court dismissed Ext. P6, ruling the medical condition could not justify condonation of delay. The appellate CMA 5/2015 also dismissed related applications, and the appeal was subsequently pursued in this High Court. The petitioners argued that the third defendant had a valid defence and an acceptable explanation for his absence, and that merits adjudication was essential to prevent deprivation of property wrongfully held for over thirty years; they proposed compensation to the respondents to offset prejudice. The respondents contended that the third defendant willfully avoided court, was represented, and reopening would prejudice them. The High Court, while acknowledging the illness, followed the Supreme Court’s reasoning in Robin Thapa v. Rohit Dora (Supra), holding that justice requires merits-based adjudication. Accordingly, the original petition is allowed; Exts. P6 and P8 are set aside; costs of Rs. 25,000 are awarded; the trial court is directed to proceed with the suit and dispose of it within six months.

Legal Doctrines & Maxims

As far as possible, adjudication should be on merits.
Litigation should not be terminated by default.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submitted that the third defendant had a valid defence and an acceptable explanation for his absence, and that the ex parte decree should be set aside so the suit can be adjudicated on merits. They argued for compensating the respondents to offset prejudice, and relied on the Supreme Court’s Robin Thapa v. Rohit Dora to justify merits-based adjudication even in the face of delay.

Contentions of Respondents

The respondents argued that the third defendant deliberately avoided the court, was being represented by counsel for other defendants, and that reopening would cause extreme prejudice. They noted the decree was already executed (and that a building had been constructed on decree schedule property) and urged finality rather than merits-based re-litigation.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Robin Thapa v. Rohit Dora	2019 SCC 359	Positive	Cited as persuasive authority; the Supreme Court in this decision endorses merits-based adjudication and setting aside ex parte decrees where justice requires it.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943** ## **OP(C) NO. 1865 OF 2018** **AGAINST THE ORDER/JUDGMENT IN CMA 5/2015 OF ADDITIONAL DISTRICT COURT, TIRUR, MALAPPURAM** ## **OS 197/2006 OF MUNSIFF MAGISTRATE COURT,PONNANI, MALAPPURAM** ## **PETITIONER/S:** **AYISHA 1 AGED 52 YEARS AGED 52 YEARS, W/O. ABOOBACKER, KORPULLI HOUSE, NANNAMMUKKU AMSOM, DESOM AND POST,PONNANI TALUK, MALAPPURAM DISTRICT.** ## **SUBAIR** **2 AGED 38 YEARS, S/O. ABOOBACKER,KORPULLI HOUSE, NANNAMMUKKU AMSOM, DESOM AND POST,PONNANI TALUK, MALAPPURAM DISTRICT.** ## **SUNEERA** **3 AGED 32 YEARS, D/O. ABOOBACKER,KORPULLI HOUSE, NANNAMMUKKU AMSOM, DESOM AND POST,PONNANI TALUK, MALAPPURAM DISTRICT.** ## **SAKEER** **4 AGED 28 YEARS, S/O. ABOOBACKER,KORPULLI HOUSE, NANNAMMUKKU AMSOM, DESOM AND POST,PONNANI TALUK, MALAPPURAM DISTRICT.** **BY ADVS. SRI.K.P.SUDHEER SRI.J.RAMKUMAR** **OP(C) NO. 1865 OF 2018** **2** ## **RESPONDENT/S:** ## **PARAPPUR VALAPPIL FATHIMMA** - **1 AGED 50 YEARS, W/O. KORPULLI ALAVI, NANNAMUKKU AMSOM,THEKKUMMURI DESOM, PONNANI TALUK, MALAPPURAM DISTRICT,PIN 679 575.** ## **SALEENA** - **2 AGED 28 YEARS, D/O. LATE ALAVI,KORPULLI HOUSE, NANNAMUKKU AMSOM,THEKKUMMURI DESOM, PONNANI TALUK, MALAPPURAM DISTRICT,PIN 679 575.** ## **SHARJIHANA** - **3 AGED 27 YEARS, D/O. LATE ALAVI,KORPULLI HOUSE, NANNAMUKKU AMSOM,THEKKUMMURI DESOM, PONNANI TALUK, MALAPPURAM DISTRICT,PIN 679 575.** ## **SABNA** - **4 AGED 24 YEARS, D/O. LATE ALAVI,KORPULLI HOUSE, NANNAMUKKU AMSOM,THEKKUMMURI DESOM, PONNANI TALUK, MALAPPURAM DISTRICT,PIN 679 575.** - **5 SAILAAGED 21 YEARS DO. LATE ALAVI KORPULLI HOUSE, NANNAMUKKU AMSOM,THEKKUMMURI DESOM, PONNANI TALUK, MALAPPURAM DISTRICT,PIN 679 575.** - **6 SAJNA AGED 20 YEARS DO. LATE ALAVI KORPULLI HOUSE, NANNAMUKKU AMSOM,THEKKUMMURI DESOM, PONNANI TALUK, MALAPPURAM DISTRICT,PIN 679 575.** **BY ADVS. SRI.T.I.ABDUL SALAM SMT.K.R.MONISHA** THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **OP(C) NO. 1865 OF 2018** **3** ## JUDGMENT Dated this the 6th day of October 2021 Petitioners are the legal heirs of the 3rd defendant in O.S No197 of 2006 on the files of the Munsiff Magistrate Court, Ponnanni. The suit was filed by the predecessor in interest of the respondents seeking partition of three items of properties. The 3rd defendant entered appearance and filed written statement contending that he is the absolute owner in possession of the properties, having been issued with purchase certificate with respect to the properties sought to be partitioned. The 3rd defendant was bedridden at the time when the suit was listed for trial and the counsel reported no instruction, resulting in the suit being decreed ex parte. The third defendant filed Exts. P4 and P5 applications for setting aside the exparte decree, after condoning the delay of 640 days in filing the application. By Ext.P6 order, the trial court dismissed the application finding that the cardiac ailment, projected as the reason for petitioner's absence before the trial court, was not convincing or sufficient to condone the **OP(C) NO. 1865 OF 2018** delay of 640 days. The trial court noted that despite receipt of summons in the final decree proceedings, the third defendant had not entered appearance. 2.Aggrieved by Ext.P6 order, the third defendant filed Ext.P8 Civil Miscellaneous Appeal. Pending the appeal the third defendant died and the petitioners were impleaded, being his legal representatives. After impleadment, the petitioners filed Ext. P7 application, seeking to produce the medical records of the third defendant to prove that he was suffering from cardiac ailments during the relevant period. By Ext.P8 common order, the appellate court dismissed Ext.P7 application and the appeal. Aggrieved, this original petition is filed. 3.Sri. K.P Sudheer, learned counsel for the petitioner submitted that the third defendant had a valid defence in the suit and had offered an acceptable explanation for his absence, as also the delay of 640 days in filing the application for setting aside the ex parte decree. It is submitted that unless the exparte decree is set aside, the petitioners will be thrown out from their **OP(C) NO. 1865 OF 2018** **5** property, which has been their ownership and possession for more than thirty years. Reliance in placed on the decision of the Honourable Supreme Court in Robin Thapa v. Rohit Dora [2019) 7 SCC 359] to contend that, ordinarily a litigation should not be terminated by default either of the plaintiff or the defendant and the cause of justice requires that, as far as possible, adjudication should be on merits. While agreeing that the 3rd defendant should have been more vigilant in contesting the suit, learned counsel would submit that the third defendant had an acceptable explanation for his absence and the delay. It is submitted that the medical records produced in the CMA amply proves that the third defendant was under intensive treatment during the relevant period and the prejudice caused to the respondents can be set off by payment of adequate compensation. 4.Smt. Monisha K.R, learned counsel for the respondents submitted that the third defendant had deliberately kept away from the court in an attempt to protract the proceedings. It is pointed out that the third defendant was being represented by **OP(C) NO. 1865 OF 2018** **6** the counsel appearing for the other defendants and therefore, he cannot feign ignorance about the proceedings. Learned counsel also submitted that in spite of the exparte decree, the petitioners constructed a building in the decree schedule property. Finally it is contended that reopening of the suit would cause extreme prejudice to the respondents and that, rather than being compensated in terms of money, respondents want the decree in their favour to attain finality at the earliest. 5. No doubt, the requisite evidence to prove the medical condition of the third defendant was not produced before the trial court. At the same time, the fact that the 3rd defendant was suffering from cardiac problems and had succumbed to the illness later, cannot be disputed. The petitioners are residing in the plaint schedule property and contend that the property belong to them absolutely. In such circumstances it is only appropriate to afford the petitioners an opportunity to contest the suit on merits. In arriving at this conclusion, I am guided by the decision of the Honourable Supreme Court in Robin Thapa v. **OP(C) NO. 1865 OF 2018** **7** Rohit Dora (Supra). Of course, the respondents have to be compensated for the hardship caused to them. In the result, the original petition is allowed, Exhibits P6 and P8 orders are set aside. I.A Nos. 819 and 820 of 2014 in O.S No. 197 of 2006 are allowed, subject to the petitioners paying Rs. 25,000/-(Rupees Twenty Five Thousand Only) as cost to the respondents, through their counsel in this original petition, within a period of six weeks. On production of the receipt evidencing payment of cost along with copy of this judgment, the trial court shall proceed with the suit and take earnest efforts to dispose of the suit within six months. Sd/V.G ARUN JUDGE SJ **OP(C) NO. 1865 OF 2018** **8** ## **APPENDIX OF OP(C) 1865/2018** ## **PETITIONER EXHIBITS** **TRUE COPY OF PLAINT DATED 12-10-2006 IN O.S NO. EXHIBIT P1 197/2006 ON THE FILE OF THE MUNSIFF-MAGISTRATE COURT, PONNANI.** **EXHIBIT P2** **TRUE COPY OF WRITTEN STATEMENT DATED 3-2-2007 IN O.S NO. 197/2006 ON THE FILE OF THE MUNSIFFMAGISTRATE'S COURT, PONNANI FILED BY THE ORIGINAL DEFENDANT ALONG WITH OTHER DEFENDANTS.** **TRUE COPY OF JUDGMENT DATED 25-09-2012 IN O.S NO. EXHIBIT P3 197/2006 PASSED BY MUNSIFF-MAGISTRATE'S COURT, PONNANI.** **TRUE COPY OF I.A NO. 819/2014 IN O.S NO. 197/06 OF THE HON'BLE MUNSIFF COURT, PONNANI TO CONDONE THE EXHIBIT P4 DELAY IN FILING THE PETITION TO SET ASIDE THE EXPARTE DECREE.** **TRUE COPY OF I.A NO. 820/2014 IN O.S NO. 197/06 OF EXHIBIT P5 THE HON'BLE MUNSIFF COURT, PONNANI TO SET ASIDE THE EX-PARTE DECREE 28-09.** **TRUE COPY OF COMMON ORDER DATED 25/11/2014 IN I.A EXHIBIT P6 NO. 819/2014 AND IN I.A.820/2014 IN O.S NO. 197/06 PASSED BY MUNSIFF-MAGISTRATE'S COURT, PONNANI** **TRUE COPY OF ORDER DATED 14-3-2018 IN IA NO. 5270/2017 EXHIBIT P7 IN CMA NO. 5/2015 PASSED BY ADDITIONAL DISTRICT JUDGE'S COURT, TIRUR.** **TRUE COPY OF JUDGMENT DATED 14-3-2018 IN CMA NO. 5/2015 EXHIBIT P8 PASSED BY ADDITIONAL DISTRICT JUDG'ES COURT, TIRUR.** **OP(C) NO. 1865 OF 2018** **9** **TRUE COPY OF E.P. NO. 107/2019 IN FDIA NO. 193/2013 IN EXHIBIT P9 O.S. NO. 197/2006 ON FILES OF MUNSIFF - MAGISTRATE'S COURT, PONNANI.** **TRUE COPY OF SUMMONS DATED 3.8.2019 ISSUED BY MUNSIFF - EXHIBIT P10 MAGISTRATE'S COURT, PONNANI IN EXHIBIT P9 EXECUTION PETITION.** **EXHIBIT P11** **TRUE COPY OF E.A 4/2020 DATED 17.11.2020 IN E.P NO 107/2019 IN FDIA NO.193/2013 IN O.S NO 197/2006 ON THE FILES OF MUNSIFF- MAGISTRE'S COURT, PONANI ALONG WITH SUMMONS** ## **RESPONDENT'S EXHIBITS** **EXHIBIT R1(A) THE TRUE PHOTOCOPY OF THE FINAL DECREE DATED 18.02.2015**