Binoy V. Issac v. N. M. Sebastian

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 9[TH] DAY OF JUNE 2023 / 19TH JYAISHTA, 1945 ``` ``` FAO NO. 195 OF 2019 ``` ``` AGAINST THE ORDER DATED 31.08.2018 IN I.A.NO.898 OF 2017 IN O.S.NO.40 OF 2014 OF THE SUB COURT, THODUPUZHA ``` ## **`APPELLANT/PETITIONER/DEFENDANT:`** ``` BINOY V.ISSAC, AGED 42 YEARS S/O.V.D.ISSAC, VARICKANICKAL HOUSE, KUTHUKUZHY P.O., VAYANASALAPADI VALIYAPARA ROAD, KOTHAMANGALAM NOW RESIDING AT BOX NO.59462, (CHARTER CORNER), RIYADH - 11525, KINGDOM OF SAUDI ARABIA, REPRESENTED BY POWER OF ATTORNEY HOLDER V.V.KURIAN, AGED 59 YEARS, S/O.V.K.VARUGHESE, VALIYAPARAMBIL HOUSE, KOTHAMANGALAM P.O., PIN - 686 691. ``` ## **`BY ADV PEEYUS A.KOTTAM`** ## **`RESPONDENT/RESPONDENT/PLANTIFF:`** ``` N.M.SEBASTIAN, AGED 52 YEARS S/O.N.V.MATHEW, NARIKUZHIYIL HOUSE, OLAMATTOM KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK, PIN-685 584. ``` ``` BY ADVS.SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.BENOJ C AUGUSTIN SRI.RAFEEK. V.K. SMT.P.PARVATHY ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 09.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 FAO No.195 of 2019 ## **JUDGMENT** ## Anil K. Narendran, J. The appellant is the defendant in O.S.No.40 of 2014 on the file of the Sub Court, Thodupuzha, which is one filed by respondent-plaintiff for recovery of the amount of Rs.30,90,000/from the appellant with interest, which was decreed _ex parte_ on 04.12.2017. The appellant filed I.A.No.898 of 2017 under Order IX Rule 13 of the Code of Civil Procedure, 1908, seeking an order to set aside the _ex parte_ decree. By the order dated 31.08.2018, the said application was dismissed. Feeling aggrieved, this appeal has been filed, along with C.M.Application No.1 of 2019, for condonation of delay of 361 days, which was condoned by the order dated 01.11.2022, on payment of a cost of Rs.1,000/-. 2. Heard the learned counsel for the appellant-defendant and also the learned counsel for the respondent-plaintiff. 3. The learned counsel for the appellant-defendant would contend that I.A.No.898 of 2017 in O.S.No.40 of 2014, the application under Order IX Rule 13 of the Code of Civil Procedure, was one filed within the period of limitation. Therefore, the Sub Court ought to have allowed that interlocutory application, since the absence of the defendant was not mala fide or intentional. 4. Per contra, the learned counsel for the respondent- 3 FAO No.195 of 2019 plaintiff would contend that the court below has stated valid reasons in the impugned order to dismiss that application, which warrants no interference. 5. Order IX, Rule 13 of the Code of Civil Procedure provides for setting aside of _ex parte_ decree 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 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 4 ## FAO No.195 of 2019 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. 6. In **G.P. Srivastava v. R.K. Raizada [(2000) 3 SCC 54]** in the context of an application filed under Order IX, Rule 13 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. 7. In **G.P. Srivastava [(2000) 3 SCC 54]** , the Apex Court held further that, ‘sufficient cause’ for non-appearance 5 ## FAO No.195 of 2019 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, 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. 8. 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 6 FAO No.195 of 2019 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. 9. The principle laid down in **Peeves Enterprises [2015 (3) KHC 981]** was reiterated in **Shivananda M. v. M. Susheela [2021 (5) KHC 357]** . It was held that ‘sufficient cause’ for nonappearance 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 the non-appearance of the defendant on the date fixed for hearing when _ex parte_ proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where a 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. 10. In the instant case, the case of the defendant is that he was working in Riyad, Saudi Arabia. He had availed 15 days leave 7 FAO No.195 of 2019 in October 2017 for the purpose of furnishing security in O.S.No.40 of 2014 and was present before the court below on 06.10.2017 and 13.10.2017. Even though he had applied for further leave for appearing before the court below in order to give evidence, no leave was granted. Therefore, he could not appear before the court on 04.12.2017. The application for adjournment was dismissed and he was set _ex parte_ . Consequently, the suit was also decreed against him on 04.12.2017. There was no wilful negligence on his part for his failure to appear before the court below. 11. In view of the law laid down in the decisions referred to supra, when the application under Order IX, Rule 13 of the Code of Civil Procedure is one filed within the period of limitation, the discretion has to be exercised in favour of the defendant, when no negligence or inaction is imputable to the defendant and his absence was not mala fide or intentional. 12. In the result, this appeal is allowed and the impugned order dated 31.08.2018 of the Sub Court, Thodupuzha in I.A.No.898 of 2017 in O.S.No.40 of 2014 is set aside. Consequently, the _ex parte_ decree passed in O.S.No.40 of 2014 is set aside. The Sub Court shall proceed with that suit and dispose 8 FAO No.195 of 2019 of the matter, as expeditiously as 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/- **P.G. AJITHKUMAR, JUDGE** AV/13/6