F.A.O.No.97 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** **FRIDAY, THE 26[TH] DAY OF AUGUST 2022 / 4TH BHADRA, 1944** **F.A.O.NO. 97 OF 2022 AGAINST THE ORDER DATED 14.07.2022 IN I.A.NO.8 OF 2020 IN O.S.NO.270OF 2018 OF II ADDITIONAL SUB COURT,ERNAKULAM** ## **APPELLANTS/PETITIONERS/DEFENDANTS 1, 2, 5, 6 & 7:** **1 LEELA, AGED 79 YEARS, W/O LATE SANKARAN, MECHERIL,'SREEPADMAM VEEDU', KUMBALAM DESOM, KUMBALAM P.O, PIN – 682506.** - **2 JAYACHANDRAN, AGED 50 YEARS, S/O LATE SANKARAN,** **MECHERIL, 'SREEPADMAM VEEDU', KUMBALAM DESOM, KUMBALAM P.O , PIN – 682506.** - **3 REMADEVI, AGED 52 YEARS, D/O LATE KAMALAKSHI AMMA, MECHERIL, 'SREEPADMAM VEEDU', KUMBALAM DESOM, KUMBALAM P.O , PIN – 682506.** - **4 JAYADEVI, AGED 48 YEARS, D/O LATE KAMALAKSHI AMMA, MECHERIL, 'SREEPADMAM VEEDU', KUMBALAM DESOM, KUMBALAM P.O, PIN – 682506.** **5 RAMESH BABU, AGED 50 YEARS, S/O LATE KAMALAKSHI AMMA, MECHERIL, 'SREEPADMAM VEEDU', KUMBALAM DESOM, KUMBALAM P.O, PIN – 682506.** **BY ADVS.** - **A.BALAGOPALAN** - **A.RAJAGOPALAN** ## **M.N.MANMADAN** ## **M.S.IMTHIYAZ AHAMMED** - **P.SEENA** 2 F.A.O.No.97 of 2022 ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS AND DEFENDANTS 3,4&8:** - **1 SATHIDEVI M.G., AGED 50 YEARS, D/O LEELA MECHERIL, THIRUVONAM VEEDU, KUMBALAM DESOM, KUMBALAM P.O, PIN – 682506.** - **2 REGHU M.G., AGED 49 YEARS, S/O LEELA MECHERIL, ARCHANA VEEDU, KUMBALAM DESOM, KUMBALAM P.O, PIN – 682506.** - **3 MADHU M.G., AGED 47 YEARS, S/O LEELA MECHERIL, ARCHANA VEEDU, KUMBALAM DESOM, KUMBALAM P.O, PIN – 682506.** - **4 SUDHA, AGED 48 YEARS, D/O SHANKARA MECHERIL, MECHERIL SREEPADAM VEEDU, KUMBALAM DESOM, KUMBALAM P.O, PIN – 682506.** - **5 SUDHEER, AGED 48 YEARS, S/O SHANKARA MECHERIL, MECHERIL SREEPADAM VEEDU, KUMBALAM DESOM, KUMBALAM P.O, PIN – 682506.** - **6 LEELA M K., AGED 78 YEARS, D/O LATE KAVUTTIAMMA, ARCHANA VEEDU, KUMBALAM DESOM, KUMBALAM P.O., PIN – 682506.** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 26.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 F.A.O.No.97 of 2022 ## **JUDGMENT** ## Ajithkumar, J. Defendant Nos.1, 2, 5, 6 and 7 in O.S.No.270 of 2018 before the II Additional Sub Court, Ernakulam, are the appellants. They filed I.A.No.8 of 2020 seeking to set aside the exparte decree passed on 25.02.2020 in the suit. As per the order dated 14.07.2022 that application was dismissed. Aggrieved thereof, this appeal has been filed under Section 104 read with Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908. 2. On 22.08.2022, notice was ordered to be served on the respondents, through their counsel appearing before the court below. A memo is filed by the learned counsel appearing for the appellants to the effect that notice was served on the learned counsel of the respondents-plaintiffs. Despite receipt of the notice, the respondents did not choose to appear in court. 3. Heard the learned counsel appearing for the appellants in detail. 4 F.A.O.No.97 of 2022 4. I.A.No.8 of 2020 was filed contending that the 5[th] appellant had been conducting the case for and on behalf of other appellants also and when the case was taken up for trial, he could not appear before the court. Earlier, when the appellants were set exparte, they filed I.A.No.6 of 2020, which was allowed on payment of a cost of Rs.5,000/- within a period of three days. The cost could not be paid since the 5[th] appellant, who is an electrician by profession, was unable to raise the fund. In the circumstances, the appellants would maintain that they failed to appear before the court for sufficient reasons and the decree dated 25.02.2020 is liable to be set aside. 5. The respondents-plaintiffs filed a counter refuting the case of the appellants. They contended that the reasons stated for non-appearance before the court by the appellants is incorrect. Appellants 1 to 5 were directed to pay Rs.5,000/as costs while allowing I.A.No.6 of 2020 and therefore the inability of the 5[th] appellant to raise fund cannot be accepted as a sufficient reason. It is alleged that the attempt of the 5 F.A.O.No.97 of 2022 appellants is to protract the matter. Accordingly, the respondents sought to dismiss the application. 6. The court below took the view that there is nothing to prove that the 4[th] appellant was ailing and the 5[th] appellant had to be in the hospital as a bystander, and that, at any rate, is not a sufficient reason for other appellants to appear before the court. The reasons stated for non-payment of the cost of Rs.5,000/- was held to be untenable. The learned counsel appearing for the appellants would submit that since the 5[th] appellant, who was conducting the case for and on behalf of other appellants also, that has to be treated as the sufficient reason for non-appearance. It is further urged that the appellants have been seriously contesting the matter and an opportunity for them to contest the suit may not be shut down for no fault of theirs. 7. It is seen that while allowing I.A.No.6 of 2020, the appellants were directed to pay a cost of Rs.5,000/- as a condition. They failed. Now, it is stated that the 5[th] appellant could not raise sufficient funds within three days and that was 6 F.A.O.No.97 of 2022 why they could not make the payment. It may appear that since the suit was pending till it was decreed exparte on 25.02.2020, the order dated 30.01.2020 obliging them to pay the cost of Rs.5,000/-, could be complied with even on a later date. The direction was to pay the cost within a period of three days. On finding that the cost was not paid, I.A.No.6 of 2020 was dismissed on 03.02.2020. It was thereafter the suit was considered and the preliminary decree passed on 25.02.2020. Immediately thereafter the appellants filed I.A.No.8 of 2020 seeking to set aside the preliminary decree. Taking into account the chronology of events mentioned above, it may be said that there was laches on the part of the appellants to a certain extent. However, having I.A.No.8 of 2020 been filed without delay, a lenient view in the matter is required. 8. In **Peevees Enterprises v. Muhammed Asharaf [2015 (2) KLT SN 102 (120)]** after referring to the decisions of the Apex Court, including **G.P.Sreevastava v. R.K.Raizada and others [(2000) 3 SCC 54],** this Court 7 F.A.O.No.97 of 2022 ## held that,- - “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.” 9. In the light of the law laid down in the aforesaid decision, by following the guidelines issued by the Apex Court in various decisions regarding the consideration for setting aside the dismissal of a suit for default and exparte decree, we are of the view that this appeal is liable to be allowed on taking a lenient view. That will enable the parties to have a decision on merits and thereby meet the interest of justice. While doing so, the appellants are bound to pay not only the costs of Rs.5,000/ordered by the court below as a condition for setting aside the exparte order in I.A.No.6 of 2020, but also an amount of Rs.2,500/- as costs for allowing I.A.No.8 of 2020. 10. In the result, this appeal is allowed, on the condition of payment of cost of Rs.7,500/- as mentioned 8 F.A.O.No.97 of 2022 above by the appellants to respondents 1 to 3, within a period of one week. On such payment, I.A.Nos.6 and 8 of 2020 will stand allowed. Thereupon, the II Additional Sub Court, Ernakulam, will proceed with the suit in accordance with law. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr