Harees Ibrahim & Asuma Beevi v. Daisy Kunjumon & Babitha Haris

FAO No.35 of 2023 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 20[TH] DAY OF JULY 2023 / 29TH ASHADHA, 1945** **FAO NO.35 OF 2023** **AGAINST THE ORDER DATED 22.11.2022 IN I.A.NO.2 OF 2022 IN** **OS 25 OF 2016 OF SUB COURT, PUNALUR.** ## **APPELLANTS/PETITIONERS/DEFENDANTS 1 & 3** - **1 HAREES IBRAHIM, AGED 42 YEARS S/O MUHAMMED IBRAHIM, RESIDING IN THE ADDRESS IRATTI KALLOTH HOUSE, KEEZHUTTU CHAVASSERI VILLAGE, KANNUR DISTRICT, HEEMA MANZIL, TAHDIKKADU P O, ARACKAL VILLAGE, PUNALUR TALUK, KOLLAM DISTRICT, PIN - 691306** - **2 ASUMA BEEVI, AGED 74 YEARS W/O MUHAMMED IBRAHIM, RESIDING IN THE ADDRESS TWINS VILLA, KAITHODU NILAMEL P O, KOLLAM DISTRICT, PIN - 691535** **BY ADV G.SREEKUMAR (CHELUR)** ## **RESPONDENTS/RESPONDENTS/PLAINTIFF & 2ND RESPONDENT** - **1 DAISY KUNJUMON, AGED 50 YEARS W/O KUNJUMON, PROPRIETOR, ROYAL JEWELLERY, ROYAL JUNCTION, THAZHUMEL MURI, ANCHAL, KOLLAM DISTRICT, PIN - 691306** - **2 BABITHA HARIS, AGED 37 YEARS D/O ABDUL SALAM, BINLA MANZIL, CHANAPPARA P O, KADAKKAL, KOTTARAKARA TALUK, KOLLAM DISTRICT, PIN - 691536** **BY ADVS. Arun Babu - R1 T.R.HARIKUMAR - R2 ARJUN RAGHAVAN(K/1277/2012) -R2** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 20.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** FAO No.35 of 2023 2 ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellants are the defendants 1 and 3 in O.S.No.25 of 2016 on the file of the Sub Court, Punalur, which was originally filed as O.S.No.107 of 2013 before the Sub Court, Kottarakkara. The 1[st] respondent herein-plaintiff filed the said suit for recovery of an amount of Rs.19,65,717/- from the appellants and the 2[nd] respondent-2[nd] defendants, together with interest at the rate of 18% per annum. The suit was listed for trial on 09.12.2020. Since the defendants were absent, they were set _ex parte_ and an _ex parte_ decree was also passed on 09.12.2020. The appellantsdefendants 1 and 3 filed I.A.No.2 of 2022, invoking the provisions under Order IX Rule 13 of the Code of Civil Procedure, 1908 seeking an order to set aside that _ex parte_ decree. The said application filed on 13.01.2022 was supported by I.A.No.1 of 2022 for condonation of delay, filed under Section 5 of the Limitation Act, 1963. The 1[st] respondent-plaintiff filed objections in those interlocutory applications, opposing the reliefs sought for, by contending that, in the years 2014, 2017, 2018 and 2019 _ex parte_ decrees were passed against the defendants, which were set aside based on similar applications. The 1[st] respondentplaintiff filed execution petitions before the Sub Court twice for FAO No.35 of 2023 3 executing the _ex parte_ decree. There is absolutely no bona fides in the present application and the intention of the appellants is only to protract the matter. 2. Though the Sub Court allowed I.A.No.1 of 2022 for condonation of delay, filed under Section 5 of the Limitation Act, 1963, for condonation of delay by separate order, I.A.No.2 of 2022 filed by the appellants-defendants 1 and 3, under Order IX Rule 13 of the Code of Civil Procedure, 1908, to set aside that _ex parte_ decree in O.S.No.25 of 2016 was dismissed with costs to the 1[st] respondent-plaintiff, by the impugned order dated 22.11.2022. Feeling aggrieved, the appellants-defendants 1 and 3 are before this Court in this appeal, which is one filed invoking the provisions under Order XLIII Rule 1(d) of the Code of Civil Procedure. 3. This appeal was filed along with C.M.Appl.No.1 of 2023 for condonation of delay of 42 days. On 26.05.2023, this Court issued consolidated notice to the respondents in both the C.M. Application and the appeal, returnable within four weeks. 4. Heard the learned counsel for the appellantsdefendants 1 and 3, the learned counsel for the 1[st] respondentplaintiff and the learned counsel for the 2[nd] respondent-2[nd] defendant. FAO No.35 of 2023 4 5. The issue that arises for consideration in this appeal is as to whether any interference is warranted in the order dated 22.11.2022 of the Sub Court in I.A.No.2 of 2022, whereby the application filed by the appellants under Order IX Rule 13 of the Code to set aside the _ex parte_ decree dated 09.12.2020 in O.S.No.25 of 2016 stands rejected for the reason stated therein. 6. The learned counsel for the appellants-defendants 1 and 3 would contend that when the appellants have shown sufficient cause for their non-appearance on the date on which they were set _ex parte_ and their absence was not malafide or intentional, the court below ought to have allowed the interlocutory application filed under Order IX Rule 13 of the Code. 7. Per contra, the learned counsel for the 1[st] respondentplaintiff would contend that the intention of the appellants in filing repeated applications, invoking the provisions under Order IX Rule 13 of the Code, is only to protract the matter. The Sub Court stated valid reasons for dismissing the said application, which warrant no interference in this appeal. 8. Order IX, Rule 13 of the Code provides for setting aside decree ex parte against defendant. As per sub-rule (1) of Rule 13, in any case in which a decree is passed _ex parte_ against FAO No.35 of 2023 5 a defendant, he may apply to the court which the decree was passed for an order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. As per the first proviso to sub-rule (1), where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also. As per the second proviso to sub-rule (1), no court shall set aside a decree passed _ex parte_ merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. As per the Explanation, where there has been an appeal against a decree passed _ex parte_ under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that _ex parte_ decree. FAO No.35 of 2023 6 ## 9. In **G.P. Srivastava v. R.K. Raizada [(2000) 3 SCC** **54]** in the context of an application filed under Order IX, Rule 13 of the Code, for setting aside an _ex parte_ decree, the Apex Court held that, the word ‘was prevented by any sufficient cause from appearing’ occurring in Order IX, Rule 13 of the Code 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 of the Code has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. 10. In **G.P. Srivastava** , the Apex Court held further that, ‘sufficient cause’ for non-appearance 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 initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where defendant approaches the FAO No.35 of 2023 7 court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not malafide 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. 11. In **Peeves Enterprises v. Muhammed Ashraf [2015 (3) KHC 981]** , relying on the law laid down by the Apex Court in **G.P. Srivastava** , a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party 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 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 adequate costs for the loss of time and the inconvenience caused to him. But any such condition shall not be too onerous. 12. In March 2020, the Apex Court took _suo motu_ cognizance of the difficulties that might be faced by the litigants in filing petitions/applications/suits/appeals/all other FAO No.35 of 2023 8 quasi-judicial proceedings within the period of limitation prescribed under the general law of limitation or under any special laws (both Central and/or State) due to the outbreak of the Covid-19 pandemic. 13. On 23.03.2020, the Apex Court directed in **In Re: Cognizance for Extension of Limitation [(2020) 19 SCC** **10]** extension of the period of limitation in all proceedings before courts/tribunals including the Apex Court with effect from 15.03.2020 till further orders. In the said order it was made clear that the Apex Court is exercising its power under Article 142 read with Article 141 of the Constitution of India and therefore, the order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities. On - 08.03.2021 **In Re: Cognizance for Extension of Limitation** **[(2021) 5 SCC 452],** the order dated 23.03.2020 was brought to an end, permitting the relaxation of period of limitation between 15.03.2020 and 14.03.2021. While doing so, the Apex Court made it clear that the period of limitation would start from 15.03.2021. By the order dated 27.04.2021 - **In Re: Cognizance for Extension of Limitation** - **[2021 (3) KHC 122]** the Apex Court restored the order dated 23.03.2020 and in continuation of the order dated 08.03.2021 directed that the FAO No.35 of 2023 9 period of limitation, as prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings, whether condonable or not, shall stand extended till further orders. It was further clarified that the period from 14.03.2021 till further orders shall also stand excluded in computing the period prescribed under Sections 23(4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe the period of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings. 14. In **Re: Cognizance for Extension of Limitation [2021 (5) KHC 508]** a Three-Judge Bench of the Apex Court held that in computing the period of limitation for any suit, appeal, application or proceedings, the period from 15.03.2020 till 12.10.2021 shall stand excluded. Later, by the order dated **-** 10.01.2022 - **Cognizance for Extension of Limitation, In re [(2022) 3 SCC 117]** the Apex Court restored the order dated 23.03.2020 **[(2020) 19 SCC 10]** and in continuation of the subsequent orders dated 08.03.2021 **[(2021) 5 SCC 452]** , 27.04.2021 **[(2021) 3 KHC 122]** and 23.09.2021 **[2021 (5)** FAO No.35 of 2023 10 **KHC 508 : 2021 SCC OnLine SC 947]** , it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings. In **Aswathi R. Pillai v. Aravind K. Unnithan [2023 (3) KLT 521]** a Division Bench of this Court in which both of us were parties noticed that the orders of the Apex Court referred to hereinbefore, which are issued in exercise of the powers under Article 142 read with Article 141 of the Constitution of India, are binding orders within the meaning of Article 141 on all courts/tribunals and authorities. 15. In the instant case, the defendants in O.S.No.25 of 2016 were set _ex parte_ and the Sub Court passed the _ex parte_ decree on 09.12.2020, when the litigants were facing difficulties in filing suits, petitions, applications, etc., in courts, tribunals, quasi-judicial authorities, etc., due to the outbreak of the Covid19 pandemic. By a separate order in I.A.No.1 of 2022, an application filed under Section 5 of the Limitation Act, the Sub Court condoned the delay in filing I.A.No.2 of 2022, an application under Order IX, Rule 13 of the Code of Civil Procedure, 1908, to set aside the _ex parte_ decree in O.S.No.25 of 2016. FAO No.35 of 2023 11 16. In the affidavit filed in support of I.A.No.2 of 2022, the stand taken by the appellants was that at the relevant time, the 1[st] appellant-1[st] defendant was working as Deputy Tahsildar in Udumbanchola in Idukki District. Due to stress in the employment, the 1[st] appellant was having acute back pain and lumbago. The 2[nd] appellant-3[rd] defendant, who was aged 67 years, was residing in the house of her daughter at Nilamel. She was unable to travel to Punalur due to old age diseases. The 1[st] respondent-plaintiff disputed the case of the 1[st] appellant-1[st] defendant regarding his aliment and contended that there was no impediment on the part of defendants 1 and 3 in attending the court on 09.12.2020. 17. In the impugned order dated 22.11.2022, the Sub Court noticed that in the years 2014, 2017, 2018 and 2019 _ex parte_ decrees were passed against the defendants, which were set aside based on similar applications. The plaintiff filed execution petitions before the Sub Court twice for executing the _ex parte_ decree. Though a medical certificate was produced along with the application, the doctor who issued that certificate was not examined before the court and therefore, the contents of that certificate were not proved. There is no evidence to show that the 2[nd] appellant was at Nilamel during the relevant period FAO No.35 of 2023 12 and she was not able to travel due to old age diseases. After getting notice in the execution petition, they filed the application for setting aside the _ex parte_ decree. Therefore, the Sub Court dismissed I.A.No.2 of 2022, by the impugned order dated 22.11.2022. 18. As already noticed, by a separate order in I.A.No.1 of 2022, the Sub Court condoned the delay in filing I.A.No.2 of 2022, the application filed to set aside the _ex parte_ decree in O.S.No.25 of 2016. Further, the defendants were set _ex parte_ and the Sub Court passed the _ex parte_ decree on 09.12.2020, when the litigants were facing difficulties in filing suits, petitions, applications, etc., in courts, tribunals, quasi-judicial authorities, etc., due to the outbreak of the Covid-19 pandemic. In view of the law laid down in the decisions referred to supra, an interference is warranted in the impugned order dated 22.11.2022 of the Sub Court in I.A.No.2 of 2022 in O.S.No.25 of 2016; however only on payment of costs to the 1[st] respondentplaintiff, since O.S.No.25 of 2016 was decreed _ex parte_ previously in the years 2014, 2017, 2018 and 2019. In such circumstances, this appeal is allowed by setting aside the impugned order dated 22.11.2022 of the Sub Court, Punalur in I.A.No.2 of 2022 in O.S.No.25 of 2016, on payment of FAO No.35 of 2023 13 a cost of Rs.10,000/- to the 1[st] respondent-plaintiff, within a period of two weeks from the date of receipt of a certified copy of this judgment. On such payment being made, I.A.No.2 of 2022 will stand allowed, by setting aside the _ex parte_ decree in O.S.No.25 of 2016 and the suit will stand restored to file. Thereafter, the Sub Court shall proceed with the suit and finally dispose of the same, as expeditiously as possible, at any rate, within a period of four months. Both parties shall appear before the court below on **21.08.2023** . Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** Dxy