Biju Toms K v Kerala Institute of Labour and Employment (KILE) and Indian Institute of Tourism and Management (IITM)

1 F.A.O.No.134 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN`** ``` & ``` ## **`THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON`** ``` MONDAY, THE 1[ST] DAY OF APRIL 2024 / 12TH CHAITHRA, 1946 ``` ``` F.A.O.NO.134 OF 2023 ``` ``` AGAINST THE ORDER DATED 08.03.2023 IN I.A.No.416 of 2022 in OS NO.98 OF 2016 PRINCIPAL SUB COURT, THIRUVANANTHAPURAM APPELLANT/PETITIONER: ``` ``` BIJU TOMS K AGED 55 YEARS ``` ``` CO¬ORDINATOR, INDIAN INSTITUTE OF TOURISM AND MANAGEMENT (IITM), PALTTUTHAZAM CIVIL STATION, KOZHIKODE - 673020, PRESENTLY WORKING AS IITM CO¬ORDIANTOR, DEPARTMENT OF CENTRE FOR CAREER ADVANCEMENT (CCA) COUNTRY SIDE, SHALOM, SURAJAPUR ROAD, BANGLORE - 35, NOW RESIDING AT NO.2C, SHALOM COUNTRY SIDE, BANGALORE SOUTH, BENGALURU, KARNATAKA,PIN - 560035 ``` ``` BY ADV PAUL P. ABRAHAM ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 KERALA INSTITUTE OF LABOUR AND EMPLOYMENT (KILE) REPRESENTED BY ITS EXECUTIVE DIRECTOR, SUNIL THOMAS, AGED 46 YEARS, S/O THOMAS, HAVING OFFICE AT THOZHIL BHAVAN, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN - 695033`** - **`2 INDIAN INSTITUTE OF TOURISM AND MANAGEMENT (IITM) REPRESENTED BY ITS CO¬ORDINATOR, BIJU TOMS. K, HAVING REGISTERED OFFICE AT PALTTUTHAZAM CIVIL STATION, KOZHIKKODE - 673020 AND ALSO HAVING OFFICE AT C/O NSF BUILDING, ROOM NO.7, KANCHAS BUILDING, OPPOSITE INDOOR STADIUM, CALICUT, PIN –`** 2 F.A.O.No.134 of 2023 ``` BY ADVS. Biju P.P SAFNA P.S.(K/1429/2023) ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 01.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 F.A.O.No.134 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellant is the 2[nd] defendant in O.S.No.98 of 2016 on the file of the Principal Sub Court, Thiruvananthapuram, a suit filed by the 1[st] respondent herein–plaintiff against the appellant and the 2[nd] respondent herein-1[st] defendant, for realisation of money. In that suit, the Principal Sub Court passed an _ex parte_ decree dated 26.03.2022, whereby the plaintiff is permitted to realise an amount of Rs.25,86,512/- with interest at the rate of 6% per annum from the defendants and their assets. The appellant-2[nd] defendant filed I.A.No.416 of 2022, invoking the provisions under Order IX, Rule 13 of the Code of Civil Procedure, 1908, seeking an order to set aside that _ex parte_ decree. That application was one filed within the period of limitation. The 1[st] respondent–plaintiff filed objections in that interlocutory application, opposing the relief sought for. After considering the rival contentions, the trial court, by the order dated 08.03.2023 dismissed I.A.No.416 of 2022, for the reasons stated therein. Feeling aggrieved, the appellant is before this Court in this appeal, invoking the 4 ## F.A.O.No.134 of 2023 provisions under Order XLIII, Rule 1(d) of the Code. 2. This appeal was filed along with C.M.Application No.1 of 2023 for condonation of delay of 85 days, which was allowed today (01.04.2024) by a separate order. 3. Heard the learned counsel for the appellant-2[nd] defendant and the learned counsel for the 1[st] respondent-plaintiff. 4. The learned counsel for the appellant-2[nd] defendant would contend that when the application filed under Order IX, Rule 13 of the Code is one filed within the period of limitation, in the absence of any vitiating circumstances, the Principal Sub Court ought to have allowed that application. 5. On the other hand, the learned counsel for the 1[st] respondent-plaintiff would submit that valid reasons have been stated in the impugned order, by the Principal Sub Court for rejecting that interlocutory application filed under Order IX Rule 13 of the Code. The reasoning of that court, which is not perverse or patently illegal, requires no interference in this appeal. 6. Order IX, Rule 13 of the Code provides for setting aside decree _ex parte_ against defendant. As per sub-rule (1) of Rule 13, in any case in which a decree is passed _ex parte_ against a defendant, he may apply to the court which the decree was passed 5 ## F.A.O.No.134 of 2023 for an order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. As per the first proviso to sub-rule (1), where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also. As per the second proviso to sub-rule (1), no court shall set aside a decree passed _ex parte_ merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. As per the Explanation, where there has been an appeal against a decree passed _ex parte_ under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that _ex parte_ decree. 7. In **G.P. Srivastava v. R.K. Raizada [(2000) 3 SCC** **54]** in the context of an application filed under Order IX, Rule 13 6 ## F.A.O.No.134 of 2023 of the Code, for setting aside an _ex parte_ decree, the Apex Court 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. 8. In **G.P. Srivastava [(2000) 3 SCC 54]** , the Apex Court 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 non-appearance 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, 7 ## F.A.O.No.134 of 2023 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. 9. In **Peeves Enterprises v. Muhammed Ashraf [2015** **(3) KHC 981]** , relying on the law laid down by the Apex Court in **G.P. Srivastava [(2000) 3 SCC 54]** , a Division Bench of this Court held that, on an application filed under Order IX, Rule 13 of the Code of Civil Procedure, the court has to find out whether the erring party has made out sufficient cause for setting 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. 10. In the instant case, I.A.No.416 of 2022 filed by the appellant-2[nd] defendant, invoking the provisions under Order IX, Rule 13 of the Code, is one filed within the period of limitation. On 05.03.2022, when the suit was listed for trail, the 2[nd] defendant filed an application to remove the case from the list. That 8 ## F.A.O.No.134 of 2023 application was dismissed and an ex parte decree was passed on 26.03.2022. According to the appellant, when the case was listed for trial, he could not contact his counsel since he was under post Covid treatment and he could not appraise true facts to his counsel. The Principal Sub Court rejected the cause shown by the appellant on the ground that he had not produced any document to substantiate the said fact. 11. Having considered the pleadings and materials on record and the submissions made at the Bar in the light of the law laid down in the decisions referred to supra, we find that the impugned order dated 08.03.2023 of the Principal Sub Court, whereby I.A.No.416 of 2022 filed by the appellant, within the period of limitation, to set aside the ex parte decree dated 26.03.2022 in O.S.No.98 of 2016, warrants interference in this appeal. In the result, this appeal is allowed by setting aside the order of the Principal Sub Court, Thiruvananthapuram dated 08.03.2023 in I.A.No.416 of 2022 in O.S.No.98 of 2016 and that application is allowed as prayed for. Consequently, O.S.No.98 of 2016 will stand restored to file. Since the suit is of the year 2016, the Principal Sub Court shall finally dispose of the same, as expeditiously as 9 F.A.O.No.134 of 2023 possible, at any rate, within a period of four months from the date of receipt of a certified copy of this judgment. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **HARISANKAR V. MENON, JUDGE** ACR 10 F.A.O.No.134 of 2023 ## **`APPENDIX OF FAO 134/2023`** ## **`PETITIONER ANNEXURES`** ``` Annexure A-1 CERTIFIED COPY OF THE JUDGMENT AND DECREE DATED 26-03-2022 IN OS. 98/2016 Annexure A-2 ORIGINAL MEDICAL CERTIFICATE DATED 07.03.2022 ISSUED TO THE APPELLANT FROM HIS DOCTOR Annexure A-3 ORIGINAL MEDICAL CERTIFICATE DATED 13.03.2022 ISSUED TO THE APPELLANT FROM HIS DOCTOR ```