Cinju C. Nair v. Prathibha and Vijikumar; Prathibha v. Cinchu C. Nair (FAO Nos. 59/2023 & 13/2024)

1 FAO No.59 of 2023 and 13 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON THURSDAY, THE 30[TH] DAY OF MAY 2024 / 9TH JYAISHTA, 1946 FAO NO.59 OF 2023 ``` ``` AGAINST THE COMMON ORDER DATED 06.08.2021 IN I.A.NOS.79 OF 2020 AND 80 OF 2020 IN OS NO.556 OF 2010 OF ADDITIONAL SUB COURT, KOLLAM ``` ``` ------ ``` ## **`APPELLANT/PETITIONER:`** ``` CINJU C. NAIR, AGED 40 YEARS, D/O. PRABHAKUMAR, KAILASOM, KALLUMTHAZHAM P.O., KILIKOLLOOR CHERRY, KILIKOLLOOR VILLAGE, KOLLAM, PIN – 691004. ``` ``` BY ADVS. BHANU THILAK S.R.PRASANTH ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 PRATHIBHA, AGED 45 YEARS, W/O. PRAKASHAN PILLAI, UTHRADOM NEAR NAVADEEP SCHOOL, DECENT JUNCTION KOLLAM, PIN – 691577.`** ``` 2 VIJIKUMAR, AGED 46 YEARS, S/O.GANAPATHY. YADUKULAM, DECENT JUNCTION, VETTILATHAZHO, THRIKOVILVATTOM, KOLLAM, PIN – 691577. ``` ``` BY ADVS. K.G.BINDU ``` ``` Renjith Kumar V ``` 2 FAO No.59 of 2023 and 13 of 2024 ``` T.S.MAYA (THIYADIL)(K/140/1995) M.P.MARY(K/88/1962) MOHAPRASEED MOHAN(K/001096/2019) ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 30.05.2024, ALONG WITH FAO.13/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 FAO No.59 of 2023 and 13 of 2024 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON ``` ``` THURSDAY, THE 30[TH] DAY OF MAY 2024 / 9TH JYAISHTA, 1946 FAO NO. 13 OF 2024 ``` ``` AGAINST THE ORDER DATED 06.08.2021 IN OS NO.556 OF 2010 OF ADDITIONAL SUB COURT, KOLLAM ``` ``` ------ ``` ## **`APPELLANT/PETITIONER/PLAINTIFF:`** ``` PRATHIBHA, AGED 47 YEARS, W/O.PRAKASAN PILLAI, RESIDING AT UTHRADOM, NEAR NAVADEEP SCHOOL, DECENT JUNCTION, KOLLAM FROM SREE SADAN, THAMARAKUDY CHERRY, KOLLAM VILLAGE, PIN – 691577. ``` ``` BY ADVS. K.G.BINDU T.S.MAYA (THIYADIL) ``` ## **`RESPONDENTS/DEFENDANTS:`** ``` 1 VIJI KUMAR, AGED 48 YEARS, S/O.GANAPATHY ACHARI, RESIDING AT YEDUKULAM, DECENT JUNCTION, VETTILATHAZHAM CHERRY, THRIKKOVILVATTOM VILLAGE, KOLLAM TALUK, PIN – 691577. 2 CINCHU C. NAIR, D/O. PRABHAKUMARI, AGED 42 YEARS, RESIDING AT KAILASOM, KALLUMTHAZHAM P.O., KILIKOLLOOR CHERRY, ``` 4 FAO No.59 of 2023 and 13 of 2024 ``` KILIKOLLOOR VILLAGE, KOLLAM, PIN – 691577. ``` ``` BY ADVS. Renjith Kumar V BHANU THILAK M.P.MARY(K/88/1962) MOHAPRASEED MOHAN(K/001096/2019) S.R.PRASANTH(K/000462/2015) VISHNU.R(K/908/2014) ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 30.05.2024, ALONG WITH FAO.59/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 5 FAO No.59 of 2023 and 13 of 2024 ## **JUDGMENT** ## [FAO Nos.59 of 2023 and 13 of 2024] ## **Harisankar V. Menon, J** . These two cases are filed against the common order dated 6.8.2021 passed by the Additional Sub Court, Kollam, rejecting the applications filed under Order IX Rule 9 of the Code of Civil Procedure (for short, the 'Code') by the plaintiff as well as one of the defendants in O.S.No.556 of 2010. 2. O.S.No.556 of 2010 was filed by the appellant in FAO No.13 of 2024. The above suit was one filed for a decree of specific performance, setting aside sale deed No.795/2013 dated 14.3.2013, the decree of permanent injunction and for other consequential reliefs against the 1[st] respondent in this appeal, who was the 1[st] defendant in the suit. During the pendency of the above suit, the plaintiff alleges that the 1[st] defendant colluded with the 2[nd] defendant (2[nd] respondent in this FAO) and created a document in respect of the plaint schedule property styling the same as a sale deed and got it registered with Kannanallor Sub Registry as evidenced by sale deed No.795 of 2013. The 2[nd] defendant also instituted a counter claim in the above-referred 6 FAO No.59 of 2023 and 13 of 2024 suit for a decree of mandatory injunction against the plaintiff in the suit for reinstating a compound wall in the place of a gate allegedly installed by the plaintiff, by demolishing an existing compound wall. 3. The suit was listed for evidence on 18.07.2019 and included in the list. The plaintiff as well as the 2[nd] defendant filed separate petitions as follows: - i. The plaintiff filed I.A.627 of 2019 for removing the case from the list, pointing out that she was laid up due to severe back pain. - ii. The 2[nd] defendant filed I.A.No.626 of 2019 for removing the case from the list, stating that she was abroad with her minor children. The trial court rejected both the above applications. Resultantly, the suit as well as the counterclaim were also rejected. 4. Later, the plaintiff filed the petitions as follows: - i. I.A.No.806 of 2019 under Order IX Rule 9 of the Code for restoring the suit. - ii. I.A.No.805 of 2019 for condoning the delay of 39 days in applying for restoration. The 2[nd] defendant filed petitions as follows: - i. I.A.No.79 of 2020 for restoration of the counter claim. ii. I.A.No.80 of 2020 for condoning the delay of 297 days 7 FAO No.59 of 2023 and 13 of 2024 in filing I.A.No.79 of 2020. 4. The trial court took up all four I.A.s together and passed a common order dated 06.08.2021, finding that the plaintiff and the 2[nd] defendant could not prove that there was sufficient cause for their non-appearance on the date of trial. Finding thus, all the four petitions referred to above, have been dismissed by the trial court. 5. As against the order rejecting I.A.Nos.805 and 806 of 2019, the plaintiff has instituted FAO No.13 of 2024. As against the rejection of I.A.Nos.79 of 2020 and 80 of 2020, the 2[nd] defendant has instituted FAO No.59 of 2023. As both these appeals arise out of the same suit and as the parties involved are the same, these appeals are taken up together and disposed of by this judgment. 6. We have heard the learned counsel appearing for the respective appellants and also the counsel representing the 1[st] defendant in O.S.No.556 of 2010, who is the 1[st] respondent in FAO No.13 of 2024 and the 2[nd] respondent in FAO No.59 of 2023. 7. The short issue for consideration in these appeals is 8 FAO No.59 of 2023 and 13 of 2024 regarding the rejection of the applications for restoration of the suit as well as the counterclaim. The suit was posted for evidence on 18.7.2019. The plaintiff and the 2[nd] defendant filed separate petitions to remove the suit from the list. Both the plaintiff and the 2[nd] defendant filed separate petitions for removing the suit from the list. The plaintiff had pointed out that she was undergoing treatment for back pain and disk prolapse. The 2[nd] defendant pointed out that she was abroad at the time of trial. The trial court took the view that the plaintiff and 2[nd] defendant did not produce sufficient materials to substantiate their respective claims. At the same time, in paragraph 11 of the order, the trial court has observed that a liberal approach is required while considering the petitions under Order IX Rule 9 of the Code. ## 8. Order IX Rule 9 of Code reads as under: ## “9. Decree against plaintiff by default bars fresh suit: (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for 9 FAO No.59 of 2023 and 13 of 2024 proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party.” 9. On a reading of the above Rule, to set aside the dismissal of the suit, the plaintiff needs only to satisfy the court - that there was sufficient cause for his non appearance when the suit was called on for hearing. The court is also competent to fix costs for allowing the petition to set aside the dismissal. 10. In **G.P.Srivastava v. R.K.Raizada and Others [(2000) 3 SCC 54]** , the Apex Court considering an application under Order IX Rule 13 of Code has laid down the following: “7. Under Order IX Rule 13 CPC, an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any "sufficient cause" from appearing when the suit was called on for hearing. Unless "sufficient cause" is shown for non-appearance of the defendant in the case on the date of hearing, the court has no power to set aside an ex parte decree. The words "was prevented by any sufficient cause from appearing" 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 has to be construed as an elastic expression for which no hard and fast guidelines can 10 FAO No.59 of 2023 and 13 of 2024 be prescribed. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The "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 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 the 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.” ## Again in **Peeves Enterprises v. Muhammed Asharaf [2015 (3)** **KHC 981(DB)]** , a Division Bench of this Court wherein one of us (Anil K. Narendran, J.) was a party, has laid down the following: “16. On an application filed under Order IX Rule 13 of the Code, 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 malafide 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 11 FAO No.59 of 2023 and 13 of 2024 adequate costs for the loss of time and the inconvenience caused to him. But any such condition shall not be too onerous.” 11. The above judgments have laid down that a liberal approach is to be adopted while considering the application filed under Order IX Rule 9 of the Code. In the present case, the plaintiff instituted the suit for specific performance with respect to a property, which has been later transferred to the 2[nd] defendant by the 1[st] defendant. The 2[nd] defendant also lodged a counter claim against the plaintiff with respect to a decree of mandatory injunction for reinstating a compound wall allegedly demolished by the plaintiff. When the suit was listed for evidence, it is not that one of the parties wanted to remove the same from the list. But the plaintiff as well as the 2[nd] defendant sought removal of the suit from the list by way of properly instituted petitions. The trial court, in such circumstances, was expected to grant the said request. But, the petitions were rejected and the suit and the counter claim were dismissed. On a consideration of the entire facts and figures, we feel that the plaintiff as well as the 2[nd] defendant had filed the applications for removing the suit from the list with bona fides. In such circumstances, the subsequent 12 FAO No.59 of 2023 and 13 of 2024 petitions filed under Order IX Rule 9 of the Code ought not to have been rejected. The delay in filing the restoration applications was also explained by the plaintiff and the 2[nd] defendant. The delay as regards the plaintiff was only 39 days. As regards the 2[nd] defendant, the delay was 297 days. Valid explanations have also been provided by the 2[nd] defendant for the said delay, explaining that she was abroad, she came back to India only during March 2020 etc. In our considered view, the trial court ought to have condoned the above delay. In the result, both these appeals are allowed. The order dated 6.8.2021 in I.A.Nos.805 and 806 of 2019 passed by the Additional Sub Court, Kollam, challenged in FAO No.13 of 2024 and I.A.Nos.79 and 80 of 2020 in O.S.No.556 of 2010 challenged in FAO No.59 of 2023 are set aside. The trial court shall dispose of the suit as expeditiously as possible, at any rate, within a period of four months time, since the suit is of the year 2010. Sd/- ## **ANIL K.NARENDRAN, JUDGE** Sd/- ## **HARISANKAR V. MENON, JUDGE** ln