Devayani and Biju v. Omana and Dhanya Joshi, Bhagya Kuries (P) Ltd., Punarjani Chits (P) Ltd., Bethlehem Kuries (P) Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 FAO.No. 268 of 2010() --------------------(AGAINST ORDER IN IA.2918/2010 IN OS.481/2007 of PRL.SUB COURT,IRINJALAKUDA .................... ## APPELLANTS/PETITIONERS/DEFENDANTS 1 AND 2 ----------------------------------------------------------------------- 1. DEVAYANI, AGED 61, W/O.AYINIPPILLY KRITHYAVASAN, PADIYOOR VILLAGE,MUKUNDAPURAM TALUK. 2. BIJU, AGED 36, S/O.AYINIPPILLY KRITHYAVASAN,PADIYOOR VILLAGE,MUKUNDAPURAM TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN RESPONDENTS: RESPONDENTS/PLAINTIFF AND DEFENDANTS 3 TO 5 - ----------------------------------------------------------------------------------------------------- 1. OMANA, W/O.NEDIYAPARAMBIL PADMANABHAN, KOOLIMUTTOM VILLAGE-DESOM, KODUNGALLUR TALUK, PIN 680 664. 2. DHANYA JOSHI, D/O.PADMANABHAN, KOOLIMUTTOM VILLAGE-DESOM, KODUNGALLUR TALUK, PIN 680 664. 3. BHAGYAM KURIES (P) LTD.,IRINJALAKUDA TOWN, REP.BY ITS MANAGING DIRECTOR,PIN 680 664. 4. PUNARJANI CHITS (P) LTD., REP.BY MANAGING DIRECTOR, PADIYOOR VILLAGE, MUKUNDAPURAM TALUK, PIN 680 664. 5. BETHLAHEM KURIES (P) LTD., REP.BY MANAGING DIRECTOR, PADIYOOR VILLAGE, MUKUNDAPURAM TALUK, PIN 680 001. ADV. SRI.V.M.KRISHNAKUMAR FOR R2 SMT.P.A.ANITHA FOR R2 SRI.GINESH.P. FOR R3 SRI.RAJESH CHAKYAT FOR R4 SRI.K.A.MANZOOR ALI FOR R-5 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 11/10/2011, THE COURT ON 9/11/2011 DELIVERED THE FOLLOWING: ## **K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------F.A.O. No.268 of 2010** **----------------------------------------------Dated 9[th] November, 2011.** ## **J U D G M E N T** ## **Joseph Francis, J.** This appeal is filed by the petitioners 1 and 2 in I.A.2918/2010 in O.S.481/2007 on the file of the Principal Sub Court, Irinjalakkuda. Respondents 1 to 5 herein are the respondents in that I.A., which was filed by the defendants 1 and 2 in that suit to condone the delay of 313 days in filing the petition to set aside the ex parte decree passed against them in that suit. The relevant facts of the case as stated in the appeal memorandum are briefly as follows : 2. The appellants herein are the defendants 1 and 2 in O.S. No. 481 of 2007 on the file of the Principal Sub Court, Irinjalakuda. The respondents 1 and 2 herein are the plaintiffs in the suit. The other respondents herein got themselves impleaded subsequently as additional defendants 3 to 5 stating that they have got orders of attachment against the property in question. The said suit is one seeking a relief of specific performance of an alleged agreement for sale dated 27.1.2007 concerning 49 cents of land lying in Sy. 591/1 of the Padiyar F.A.O.268/10 2 village in Mukundapuram taluk in Thrissur district which also comprises of a residential house in which the appellants reside with the husband of the 1[st] appellant. According to the plaintiffs the rate was fixed at Rs.13,000/- per cent and an amount of Rs.2.5 lakhs was paid as advance sale consideration on the date of agreement. It is the residential house with the property that is the subject matter of this litigation. 3. The husband of the first appellant is a deaf and dumb person by birth. The summons in the case, it seems from the records, were served in the name of the petitioners, through this deaf and dumb person who is always at home. The appellants are not aware as to what exactly he has done with the summons, which on the record of the case, is seen to have been served. The suit was decreed on 28.8.09, which, as far as the appellants are concerned, is an exparte decree. 4. In the proceedings before the court below it is seen that on 19.1.2008 the suit was posted for appearance of the defendants but on that date stating that though summons F.A.O.268/10 3 were served on defendants 1 and 2 they have not filed any vakalath, the defendants 1 and 2 were set exparte. Ultimately on 28.8.2009 the decree was passed by the court below. The respondents 1 and 2 herein thereafter filed necessary application for execution of the sale deed, in which on 15.1.2010 notice was issued and it was posted to 18.3.2010 and later to 31.3.2010. Ultimately the sale deed was directed to be registered on 24.6.2010 and delivery was ordered and the case was posted to 28.7.2010, and when delivery was sought to be effected it was obstructed. 5. The appellants then filed W.P.(C) No.25582 of 2010 seeking reliefs stating that they have already filed necessary applications for setting aside the ex parte decree after condoning the delay in filing the said application and that in the meantime no delivery may be effected. This Court was pleased to defer the delivery and directed a consideration of the applications filed by the appellants herein. It is thus that the present impugned order was passed on a consideration of F.A.O.268/10 4 the application. 6. The appellants herein filed two applications before the court below; one for condoning the delay of 313 days in filing the application to set aside the ex parte decree, which was numbered as I.A.2918/10, and the other petition to set aside the ex parte decree was not numbered. In I.A.2918/2010, the respondents 1 and 2 herein filed counter. The learned Sub Judge, on considering I.A.2918/2010 dismissed that petition on the ground that the contention of the petitioners/defendants 1 and 2 does not appear to be bonafide. Against that order dated 13.8.2010, petitioners 1 and 2 in that I.A. filed this appeal. 7. Heard learned counsel for the appellants and the learned counsel for the contesting respondents. At the time of argument, learned counsel for the appellants raised the following contentions : The learned Sub Judge has failed to exercise the jurisdiction since the learned Sub Judge was expected to consider whether the reasons stated for condoning the delay is correct or not. F.A.O.268/10 5 8. The learned Sub Judge ought to have seen that the Court below in the enquiry is bound to look into whether there are sufficient reasons stated for condoning the delay and for setting aside the exparte decree. 9. The learned Sub Judge ought to have seen that by passing an order declaring the defendants ex-parte still in the proceedings the defendants could contest the matter and therefore they have a separate right to challenge the ex-parte decree by seeking to set aside the same. The learned Sub Judge ought to have seen that when an application is filed in the court below necessarily it has to be numbered. 10. Learned counsel for the appellants invited our attention to the decision reported in **Improvement Trust v. Ujagar Singh** [(2010) 6 Supreme Court Cases 786] in which it was held as follows : “While considering the application for condonation of delay no straitjacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. Each case has to be weighed from F.A.O.268/10 6 its facts and the circumstances in which the party acts and behaves. From the conduct, behaviour and attitude of the applicant it cannot be said that it had been absolutely callous and negligent in prosecuting the matter. Also delay was also not that huge, which could not have been condoned, without putting the respondents to harm or prejudice. It is the duty of the court to see to it that justice should be done between the parties. Unless mala fides are writ large on the conduct of the party, generally as a normal rule, delay should be condoned. In the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it on such technicalities.” 11. Learned counsel for the appellants submitted that the appellants are prepared to pay the amount spent by the plaintiffs to discharge the liabilities due to defendants 3 to 5. But, the learned counsel for the contesting respondents submitted that they are not amenable for such an arrangement. 12. On perusing the lower court records, it is seen that in O.S.481/07, the defendants 1 and 2 appeared before the Principal Sub Court, Irinjalakkuda on 6.12.2007 and the case was posted to 19.1.2008 for filing vakalath. On 19.1.2008, the F.A.O.268/10 7 case was not called and when the case was called on 21.1.2008, no vakalath was filed by defendants 1 and 2 and they were set ex parte. After several postings, the suit was decreed on 28.8.2009. In the suit, defendants 3 to 5 filed written statement and learned counsel for defendants 3 to 5 on 28.8.2009 submitted that defendants 3 to 5 have no objection to grant a decree for specific performance in favour of the plaintiffs, provided they are allowed to withdraw the amounts due to them under respective attachment out of the balance purchase money deposited by the plaintiffs before that court. Defendants 3 to 5 have filed statement of accounts showing the amounts due to them and also cheque applications to withdraw the amount. Counsel for the plaintiffs submitted that the balance amount is deposited in court and plaintiffs have no objection in permitting defendants 3 to 5 from withdrawing the respective amounts out of the balance of purchase money. Rs.68,058/- was due to third defendant, Rs.41,337 was due to 4[th] defendant and Rs.68,744/- was due to 5[th] defendant. The F.A.O.268/10 8 counsel for the plaintiffs submitted that an amount of Rs.1,09,395/- was deposited by the plaintiffs on 1.4.2009 towards the amount due to defendants 3 and 4 and another amount of Rs.67,620/- was deposited on 21.5.2009 towards the amount due to the 5[th] defendant. The balance purchase amount of Rs.2,77,605/- was deposited on 8.6.2009 before the court below. 13. In the affidavit filed by the first defendant in support of I.A.2918/2010 in O.S.481/2007 on the file of the Principal Sub Court, Irinjalakkuda, it is stated that defendants 1 and 2 received summons in the suit and they entrusted the same with the husband of the first defendant who is a deaf and dumb person and the husband of the first defendant went to Irinjalakkuda to engage a lawyer and the husband told her that he had engaged a lawyer. In the affidavit it is further stated that defendants 1 and 2 received notice in the petition to execute sale deed and then the second defendant engaged Adv.Raghuthaman and the defendants 1 and 2 had the F.A.O.268/10 9 impression that Adv.Raghuthaman had taken steps to set aside the ex parte decree. In the affidavit, it is further stated that on 28.7.2010 the Amin came to the property for effecting delivery and then only defendants 1 and 2 understood the seriousness of the matter. In the affidavit it is stated that defendants 1 and 2 are residing in the plaint schedule property and the present value of the property is more than Rs.one crore and the agreement for sale was for Rs.6,37,000/- only. 14. The lower court records would show that the sale deed was executed by the court in favour of the plaintiffs on 28.6.2010. The petition to condone the delay in filing the petition to set aside ex parte decree was filed only on 11.8.2010, after discharging the liabilities of defendants 3 to 5 by the plaintiffs and after the execution of the sale deed by the court below. Since defendants 1 and 2 received the summons in time, we are of the view that there is no bonafides in the contention of the defendants that they were not aware of the proceedings in O.S.481/2007 in appropriate time and that the F.A.O.268/10 10 appellants have not shown sufficient cause for condoning the delay of 313 days in filing the petition to set aside the ex parte decree. Therefore, the learned Sub Judge is perfectly justified in dismissing I.A.2918/2010 in O.S.481/2007 on the file of the Sub Court, Irinjalakkuda. 15. Accordingly, this appeal is dismissed as it is without any merits. There is no order as to costs. Sd/- ## **K.M.JOSEPH, JUDGE.** Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs (True copy) P.S. to Judge.