CHEMRADATH CHANDRAN v. PUTHUSSERI CHINDAN NAMBIAR and KOLLARON SREEDHARAN NAMBIAR

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **WEDNESDAY, THE 16TH MARCH 2011 / 25TH PHALGUNA 1932** **WP(C).No. 30866 of 2009(O)** **----------------------------------------** **CMA.11/2008 of PRL.SUB COURT,THALASSERY OS.315/1997 of MUNSIF COURT, KUTHUPARAMBA** **....................** ## **PETITIONER(S):** **------------------------** **CHEMRADATH CHANDRAN, S/O.NANU, AGED 49 YEARS, AGRICULTURIST, THOMBRA AMSOM, PANAMBATTA DESOM, P.O.TOMAMBRA, THALASSERY, KANNUR DISTRICT.** **BY ADV. SRI.C.P.PEETHAMBARAN** **RESPONDENT(S):** **--------------------------** **1. PUTHUSSERI CHINDAN NAMBIAR, S/O.KUTTIRAMAN, AGED 82 YEARS, KARUVANCHERRY HOUSE, SIVAPURAM AMSOM, P.O.KANHILERI, KANNUR DISTRICT.** **2. KOLLARON SREEDHARAN NAMBIAR, S/O.GOVINDAN NAMBIAR, AGED 68 YEARS, KUTHUPARAMBA AMSOM, NARAVOOR DESOM.** **R1 & R2 BY ADV.SRI.PIRAPPANCODE.V.S.SUDHEER SRI. ADV. SRI.K.V.PAVITHRAN** **SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.30866/2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE DECREE DATED 20/12/1997IN O.S.315/1997 OF MUNSIFF COURT, KOOTHUPARAMBA.** - **P2 COPY OF THE AFFIDAVIT IN I.A.NO.2173/2003 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, KOOTHUPARAMBA.** - **P3 COPY OF THE AFFIDAVIT IN I.A.NO.2174/2003 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, KOOTHUPARAMBA.** - **P4 COPY OF THE COMMON ORDER DATED 8/4/2008 ISIN I.A.NO.2173/2003 AND 2174/2003 IN O.S.NO.315/1997 OF MUNSIFF COURT, KUTHUPARAMBA.** - **P5 COPY OF THE JUDGMENT DATED 11/3/2009 IN CMA.NO.11/2008 OF PRL.SUB COURT, THALASSERY.** **RESPONDENT'S EXHIBITS: NIL** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## **P.BHAVADASAN, J.** ------------------------------------WP(C) No.30866 of 2009 ------------------------------------Dated this the 17[th] day of March 2011 ## Judgment An interlocutory application for setting aside the ex parte decree and another for condoning the delay in filing the said application, were dismissed by a common order by the Munsiff's Court, Koothuparamba. The matter was carried in appeal by the petitioner as CMA No.11/08 before the Sub Court, Thalassery. The lower appellate court concurred with the trial court. That brings the petitioner before this court. 2. On the basis of an alleged agreement for sale, it appears that the first respondent instituted OS No.315/97 before the Munsiff's Court, Koothuparamba. It is an admitted fact that notice was served by publication on the defendant. The defendant did not appear and he was set ex parte and ultimately, an ex parte decree was passed. Execution was taken out and the property was WPC 30866/09 2 assigned to the decree holder. He later sold the same to the second respondent. While so, it so happened that when the defendant, who claims to have been working in Mumbai came down to his native place and attempted to enter the property, he was prevented by the second respondent. Thereafter only, he came to know of the ex parte decree when he was called to the police station with respect to a complaint said to be filed by the second respondent. Immediately, he took steps to have the ex parte decree set aside and also to condone the delay. The petitioner would assert that he was unaware of the decree and there was no wilful laches or negligence from his part in not appearing before the court in the trial stage. According to him, as soon as he came to know of the passing of the decree, he took immediate steps for getting it set aside along with a petition to condone the delay in filing it. 3. The courts below were more concerned with the unexplained delay from 10.07.2003 to 22.07.2003 and WPC 30866/09 3 06.08.2003 to 09.10.2003. Both the courts insisted that the delay for the above said two spells ought to have been explained and since the petitioner was unable to do so, he is not entitled to the relief of getting the ex parte decree set aside. 4. The period to file appeal against the ex parte decree begins from the date of knowledge of the decree i.e., when the notice is served by substitute service. The petitioner has stated that he came to know about the decree when he went to the police station on 10.07.2003. The application seems to have been filed on 22.07.2003 for copy of the decree. Thereafter, he obtained the decree on 06.08.2003 and had filed the petition only on 09.10.2003. The delay for these two spells remain unexplained and that has resulted in the dismissal of the petitions as well as the appeal. The learned counsel for the petitioner relied on the decision in _**M.K.Prasad v. P.Arumugham**_ (2001) 6 SCC 176) wherein it is held as follows : WPC 30866/09 4 _“In construing Section 5 of the Limitation Act, the court has to keep in mind that discretion in the section has to be exercised to advance substantial justice. The court has a discretion to condone or refuse to condone the delay as is evident from the words 'may be admitted' used in the section.”_ The learned counsel also placed reliance on the decision in _**Rabindra Singh v. Financial Commissioner**_ (2008) 7 SCC 663) wherein it is held as follows : _“All courts in a situation of the present nature have the incidental power to set aside an ex parte order on the ground of violation of the principles of natural justice. Thus, even in the absence of any express provision, having regard to the principles of natural justice in such_ _a proceeding, the courts will have ample jurisdiction to set aside an ex parte decree subject of course to the statutory interdict. What_ WPC 30866/09 5 _matters for exercise of jurisdiction is the source of power and not the failure to mention the correct provisions of law.”_ 5. According to the learned counsel, the courts below ought to have taken a lenient view in the matter especially considering the nature of the dispute involved and also the rights that the petitioner may lose by having his petition dismissed. 6. According to the petitioner, the alleged agreement on the basis of which the suit was laid and a decree is obtained, is a forged document and the recitals in the document would show that it is not a genuine one. 7. The learned counsel for the respondents, on the other hand, pointed out that there is no reason as to why after coming to know about the decree, he had taken time to apply for the copies of the judgment and decree and after obtaining copies, taken time to file necessary petitions. These two spells remain unexplained and that had persuaded the courts to dismiss the petitions filed by WPC 30866/09 6 the petitioner. It is also pointed out that the claim that the alleged agreement is forged, cannot be true because it contains both the thump impression and the signature of the petitioner. Subsequently, the property has been transferred and at this point of time, putting the parties to their old position, may cause irreparable injury to them. 8. Both the courts below were not impressed by the claim of the petitioner that he was employed at Mumbai. This court is given to understand that the petitioner is not an educated person and so, he might have taken some time for making arrangements to file the petitions. One has also to bear in mind that he had to engage a lawyer and give necessary instructions for preparing the petitions. At any rate, it could not have been said that there is unusual delay in either filing the copy application or filing the petitions. One must remember that the petitioner has, by virtue of a decree, lost 15.5 cents of property and he does not stand to gain anything by deliberately delaying the filing of the petitions. It is felt that WPC 30866/09 7 the time taken for filing the copy application and the time for filing the petitions are not so long so as to attribute mala fides or ill motives to the petitioner. The fact remains that notice was served on the defendant in the suit by publication. It is significant to notice that there was no affixture as is usual in such cases. 9. Whether the agreement is forged or not is a matter to be considered in this proceedings. We are concerned with the question whether the courts below are justified in declining to set aside the ex parte decree. In the light of the decisions of the Apex Court, it is felt that a lenient view needs to be taken in the matter. However, it has to be subject to stringent conditions since it causes injury to the respondents herein though not irreparable injuries. In the result, this petition is allowed and the impugned orders are set aside on the following conditions : 1.The petitioner shall deposit a sum of Rw.50,000/- before the court below within a period of one month from today. WPC 30866/09 8 - 2.The petitioner shall pay costs of Rs.15,000/- to the counsel for the respondents before this court. - 3.The trial court shall take up the suit on file and dispose it of as expeditiously as possible at any rate, within a period of six months from the date of appearance of the parties before it if condition no.1 is satisfied. The parties shall appear before the court below on 06.04.2011. The suit shall be disposed by the court below untrammeled by any observations made by this court in this judgment. ## **P.Bhavadasan, Judge** sta WPC 30866/09 9