C. Sajina and Goutham v Kovvammal Suchithra - FAO No. 155 of 2022

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 22[ND] DAY OF MAY 2023 / 1ST JYAISHTA, 1945** **FAO NO. 155 OF 2022** **AGAINST THE ORDER DATED 12.08.2022 IN I.A.NO.1 OF 2021 IN FDIA NO.155 OF 2012 IN O.S.NO.62 OF 2004 ON THE FILES OF THE COURT OF THE SUBORDINATE JUDGE, KANNUR** ## **APPELLANT/PETITIONERS/RESPONDENTS 2 AND 3:** **1 C. SAJINA, AGED 49 YEARS W/O.K.K.RAMESH, FLAT.NO. 4B2, SEA BLUES, RAINBOW APARTMENT, PAYYAMBALAM, KANNUR DISTRICT., PIN - 670001** **2 GOUTHAM AGED 21 YEARS S/O. K.K.RAMESH, FLAT.NO. 4B2, SEA BLUES, RAINBOW APARTMENT, PAYYAMBALAM, KANNUR DISTRICT., PIN - 670001 BY ADVS. CIBI THOMAS ANSIA K.A.** ## **RESPONDENT/RESPONDENT/PETITIONER/PLAINTIFF:** **KOVVAMMAL SUCHITHRA** **AGED 47 YEARS D/O.LATE. P.V. KUNHAMBU, SMRITHI, CHERUKUNNU. P.O, KANNUR DISTRICT., PIN - 670301** 2 F.A.O.No.155 of 2022 **BY ADVS. I.V. Pramod SAIRA SOURAJ P.(K/841/2019)** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 22.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 F.A.O.No.155 of 2022 ## **J U D G M E N T** ## P.G.Ajithkumar, J. An ex parte final decree was passed on 26.11.2021 in final decree application No.155 of 2012 in O.S.No.62 of 2004 on the files of the Sub Court, Kannur. Additional respondent Nos.2 and 3 filed I.A. No.1 of 2021 seeking to set aside that final decree under Order IX Rule 13 of the Code of Civil procedure, 1908, which was dismissed by the Sub Court as per the order dated 12.08.2022. The appellants filed this appeal under Section 104 read with Order XLIII Rule 1 of the Code challenging the said order. 2. On 10.01.2023, notice on admission was directed to be served on the respondent. Pursuant to notice, the respondent entered appearance. Further proceedings pursuant to the final decree dated 26.11.2021 were stayed as per the order dated 07.02.2023. 3. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent. 4 F.A.O.No.155 of 2022 4. O.S.No.62 of 2004 was filed seeking a decree for partition. A preliminary decree was passed on 25.08.2005. The respondent filed I.A. No.155 of 2012 for passing a final decree. The predecessor of the appellants expired in the meanwhile and therefore the appellants came on record. In the final decree proceedings, the appellants were set exparte on 19.11.2021. Eventually a final decree was passed on 12.08.2022, which the appellants sought to set aside. The appellants contended before the Sub Court that the proceedings of the final decree application were stayed by this Court in O.P.(C)No.1767 of 2019, the order of stay stood extended in view of the direction issued by the Apex court in the wake of spread of Covid 19, and the 1[st] appellant, who was looking into the case, was unable to appear before the Court since she was preoccupied with her work as reasons for setting aside the ex parte final decree. 5. The respondent opposed I.A. No.1 of 2021 contending that there was no sufficient reason to set aside the ex parte decree. It was contended that the preliminary decree 5 ## F.A.O.No.155 of 2022 was passed as early as in 2005 and on account of the recalcitrant attitude of appellants only the proceedings in the final decree application were protracted that far. The respondent contended that on merits also there was no reason to set aside the final decree. 6. The appellants would now contend that in spite of presenting those reasons, the Sub Court proceeded to dismiss the application for setting aside the ex parte final decree. It is true that having a preliminary decree passed in the year 2005, obviously the court has an obligation to pass a final decree without any further delay. The parties also have a duty to cooperate with the Court to avoid delay. However, in that course there shall not occur failure of justice by denial of opportunity to the parties. Here, the appellants would contend that their application for remitting the report of the Commissioner, on the ground that the partition proposed in the report was inequitable and therefore there could not be a metes and bounds partition, was dismissed. Their further allegation is that a similar application filed by the respondent 6 F.A.O.No.155 of 2022 was allowed and that caused injustice. 7. It is seen that the original respondent in the final decree application who is the predecessor of the appellants filed O.P.(C) No.1767 of 2019 challenging the order in I.A No.923 of 2015 which was filed for remitting the report and plan submitted by the Commissioner. If there was an order of stay in that original petition and it was in force on or after 15.03.2020, it would have continued to be in force by applying the principle adopted in the decision of the Apex Court in **In re: cognizance for Extension of Limitation** ## **[(2022) 3 SCC 117].** 8. Be that as it may, the appellants were set ex parte on 19.11.2021. The final decree was passed on 26.11.2021. Without any delay, the appellants filed I.A No.1 of 2021 for setting aside the ex parte decree. Of course, the reasons stated by the appellants were that the 1[st] appellant who was pursuing the matter was preoccupied with her work and the 2[nd] appellant was in Bangalore, and that they were not well versed with the Court proceedings and therefore they could 7 ## F.A.O.No.155 of 2022 not appear in Court in time. The Sub Court took the view that the said reasons were insufficient to set aside the ex parte decree and the application was liable only to be dismissed. 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 v R.K. Raizada and others [(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. The appellants were set ex parte during the period 8 F.A.O.No.155 of 2022 when the entire human kind was under the grip of Covid-19 pandemic. As held in **Peeves Enterprises** supra, if no negligence or inaction can be imputable to the applicants and their absence was not malafide or intentional, it is only appropriate to exercise the discretion in their favour. The application for setting aside the exparte decree was filed within the stipulated time. Although the reasons stated by the appellants are not fully satisfactory, we are of the view that, in the light of the law laid down in the aforesaid decision, the discretion in the matter is liable to be exercised in their favour. Of course, on ordering them to pay cost to compensate for the inconvenience caused to the respondent. This appeal is accordingly allowed on payment of a cost of Rs.5000/-. The appellant shall pay the cost to the respondent within ten days. On such payment, impugned order dated 12.08.2022 and the final decree dated 26.11.2021 will stand set aside and I.A. No.1 of 2021 will stand allowed. The Sub Court, Kannur will restore final decree application No.155 of 2012 in O.S. No.62 of 2004 on file and 9 F.A.O.No.155 of 2022 will dispose of it afresh as expeditiously as possible, at any rate, within three months from the date of appearance of the parties. Both parties are directed to appear before the Sub Court, Kannur on 12.06.2023. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** PV