KANDAMBATH ACHAMVEETTIL LAKSHMIKUTTI AMMA v. VANNADIL PRAMEELA and others

## **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 17[TH] DAY OF FEBRUARY 2022 / 28TH MAGHA, 1943 FAO NO. 18 OF 2021** **AGAINST THE ORDER DATED 08/12/2020 R.P.I.A.NO.341 OF 2019** **IN O.S.NO.2 OF 2009 OF SUB COURT, PAYYANNUR** ## **APPELLANT/1ST PETITIONER:** **KANDAMBATH ACHAMVEETTIL LAKSHMIKUTTI AMMA AGED 73 YEARS D/O.LAKSHMIKUTTI AMMA, PAYYANNUR AMSOM DESOM, NEAR JFCM PAYYANNUR P.O., ANNUR, KANNUR DISTRICT, PIN-670 307.** **BY ADVS.M.V.AMARESAN SRI.S.S.ARAVIND** **RESPONDENTS/RESPONDENTS 1, 5 TO 13, 16 TO 21, 23 TO 28** **AND PETITIONER 2 AND 3:** - **1 VANNADIL PRAMEELA D/O.K.A.GOVINDA POTHUVAL, 'PRABATH', PILATHARA, KANNUR DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER P.SEKHARA POTHUVAL, S/O.PARVATHI AMMA, 'PRABATH', PILATHARA, CHERUTHAZHAM AMSOM DESOM, KANNUR DISTRICT, PIN-670 501.** - **2 K.A.SYAMALA,** - **W/O.UNNIKRISHNAN, SREELAKAM, VELLUR AMSOM, ANNUR DESOM, P.O.ANNUR, KANNUR DISTRICT, PIN-670 307.** - **3 K.A.PRASANNA,** **W/O.VIJAYAN NAMBIAR, PARIJATHAM, AMBALATHARA, HOSDURG TALUK, KASARAGOD DISTRICT, PIN-671 315.** -2- F.A.O.No.18 of 2021 - **4 K.A.KUNHIKANNA POTHUVAL, S/O.LAKSHMI AMMA, KANDAMBATH ACHAMVEETTIL, MAHADEVAGRAMAM, PAYYANNUR, KANNUR DISTRICT, PIN-670 307.** - **5 K.A.HARIDASAN, KANDAMBATH ACHAMVEETTIL, VELLUR AMSOM, ANNUR DESOM, KARA, P.O.ANNUR, KANNUR DISTRICT, PIN670 307.** - **6 K.A.MURALEEDHARAN, KANDAMBATH ACHAMVEETTIL, VELLUR AMSOM, ANNUR DESOM, KARA, P.O.ANNUR, KANNUR DISTRICT, PIN670 307.** - **7 K.A.BALAKRISHNAN, KANDAMBATH ACHAMVEETTIL, NEAR JFCM, PAYYANNUR P.O., KANNUR DISTRICT, PIN-670 307.** - **8 K.A.RADHA, W/O.DR.P.RADHAKRISHNAN, THRIKKARIPPUR AMSOM DESOM, P.O.THRIKKARIPUR, KASARAGOD DISTRICT, PIN-671 310.** - **9 K.A.MOHANDAS,** - **KANDAMBATH ACHAMVEETTIL, NEAR JFCM, PAYYANNUR, P.O.PAYYANNUR, KANNUR DISTRICT, PIN-670 307.** - **10 K.A.RAMAKRISHNAN, KANDAMBATH ACHAMVEETTIL, NEAR JFCM, PAYYANNUR, P.O.PAYYANNUR, KANNUR DISTRICT, PIN-670 307.** - **11 DR.K.K.SREENIVASAN, S/O.K.A.NARAYANA POTHUVAL, KANDAMBATH ACHAMVEETTIL, CHERUKUNNU AMSOM DESOM, KANNUR DISTRICT, PIN-670 301.** -3- F.A.O.No.18 of 2021 - **12 ADV.K.K.SREEDHARAN, S/O.LATE K.A.NARAYANA POTHUVAL, KANDAMBATH ACHAMVEETTIL, PAYYANNUR AMSOM DESOM, KANNUR DISTRICT, PIN-670 307.** - **13 DR.K.K.SOMASEKHARAN, S/O.LATE K.A.NARAYANA POTHUVAL, KANDAMBATH ACHAMVEETTIL, KRISHNA MENON WOMEN'S COLLEGE, PAYYANNUR AMSOM DESOM, KANNUR DISTRICT, PIN-670 307.** - **14 K.K.,VIJAYALAKSHMI, D/O.LATE K.A.NARAYANA POTHUVAL, NEAR PAYYANNUR POLICE STATION, KOKKANISSERI, KANNUR DISTRICT, PIN-670 307.** - **15 K.K.VENUGOPALAN, S/O.LATE K.A.NARAYANA POTHUVAL, KANDAMBATH ACHAMVEETTIL, NEAR PAYYANNUR POLICE STATION, KOKKANISSERI, KANNUR DISTRICT, PIN-670 307.** - **16 DR.K.K.SIVADASAN, S/O.LATE K.A.NARAYANA POTHUVAL, KANDAMBATH ACHAMVEETTIL, KUTHIRAVATTAM HOSPITAL, KOZHIKODE, PIN-673 016.** - **17 VANNADIL SANTHAKUMARI, W/O.LATE KUNHIKRISHNA POTHUVAL, KOKKANISSERI, PAYYANNUR AMSOM DESOM, P.O.PAYYANNUR, KANNUR DISTRICT, PIN-670 307.** - **18 VANNADIL JAYASREE, D/O.SANTHAKUMARI, KOKKANISSERI, PAYYANNUR AMSOM DESOM, P.O.PAYYANNUR, KANNUR DISTRICT, PIN-670 307.** - **19 VANNADIL GEETHA, D/O.SANTHAKUMARI, KOKKANISSERI, PAYYANNUR AMSOM DESOM, P.O.PAYYANNUR, KANNUR DISTRICT, PIN-670 307.** -4- F.A.O.No.18 of 2021 - **20 VANNADIL RAJASREE, D/O.SANTHAKUMARI, ADVOCATE, PAYYANNUR, KOKKANISSERI, PAYYANNUR AMSOM DESOM, P.O.PAYYANNUR, KANNUR DISTRICT, PIN-670 307.** - **21 RAHUL JAYAPRAKASH, S/O.LATE V.JAYAPRAKASH, KODIYATH HOUSE, NEAR VAYANASALA, POLLAPPOYIL, P.O.KODAKKADU, VIA KARIVELLUR, KASARAGOD DISTRICT, PIN-671 310.** - **22 PARTHIK JAYAPRAKASH, S/O.LATE V.JAYAPRAKASH, KOLIYATH HOUSE, NEAR VAYANASALA, POLLAPPOYIL, P.O.KODAKKADU, VIA KARIVELLUR, KASARAGOD DISTRICT, PIN-671 310.** - **23 K.A.SWARNALATHA, W/O.SREEDHARAN, SRELAKAM, VELLUR AMSOM, ANNUR DESOM, P.O.ANNUR, KANNUR DISTRICT, PIN-670 307.** - **24 K.A.BALAKRISHNAN, KADAMBATH ACHAMVEETTIL, PAYYANNUR AMSOM DESOM, NEAR JFCM PAYYANNUR P.O., ANNUR, KANNUR DISTRICT, PIN-670 307.** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR** **ADMISSION ON 17.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -5- F.A.O.No.18 of 2021 ## **JUDGMENT** ## Anil K. Narendran, J. The appellant, who is the 8[th] defendant in O.S.No.2 of 2009 on the file of the Sub Court, Payyannur, a suit filed by the 1[st] respondent herein-plaintiff for mandatory injunction directing the defendants to remove the statue erected in the plaint schedule property and also for other consequential reliefs, has filed this appeal invoking the provisions under Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908 challenging the order dated 08.12.2020 of the Sub Court in R.P.I.A.No.341 of 2019 in O.S.No.2 of 2009, whereby that interlocutory application filed by the appellant along with two others, invoking the provisions under Order IX Rule 13 of the Code to set aside an ex parte decree passed in that suit on 15.01.2019, stands rejected for the reasons stated therein. 2. On 25.02.2021, when this appeal came up for admission, this Court issued notice on admission to the 1[st] respondent/plaintiff by speed post. Notice to respondents 2 to 24 was dispensed with, at the risk of the appellant. Thereafter, -6- ## F.A.O.No.18 of 2021 on 23.02.2021, this Court admitted the appeal on file and granted an interim stay of all further proceedings pursuant to the judgment and decree in O.S.No.2 of 2009 on the file of the Sub Court, Payyannur, for a period of three months. Seeking revival and extension of that interim order, the appellant filed I.A.No.1 of 2022, on 09.02.2022. 3. Heard the learned counsel for the appellant-8[th] defendant. Despite service of notice none appears for the 1[st] respondent-plaintiff. 4. The issue that arises for consideration in this appeal is as to whether any interference is warranted on the order dated 08.12.2020 of the Sub Court, Payyannur in R.P.I.A.No.341 of 2019 in O.S.No.2 of 2009, whereby that application filed by the appellant-8[th] defendant under Order IX Rule 13 of the Code, seeking an order to set aside the ex parte decree passed on 15.01.2019 in O.S.No.2 of 2009, stands dismissed for the reasons stated therein. The order dated 15.01.2019 of the court below reads thus; “The suit is one for injunction. The case was filed in the -7- F.A.O.No.18 of 2021 year 2009 and case posted in the special list in the year 2018. When the case posted for evidence, the petitioner did not appear before the court and counsel reported no instruction on that day, accordingly an exparte order was passed against the petitioner and defendants No.4 and 11 and thereafter an exparte decree was passed by this court against them. Now the petitioner filed this application to set aside the exparte decree which was passed against the petitioner as well as 4[th] and 11[th] defendants. According to the petitioner, she was laid up due to illness and so, she could not appear on 15.01.2019 to adduce evidence. Here the petitioner was examined as PW1 and her evidence would show that she was laid up due to heart disease for a period of 45 days from 04.12.2018 and that is the reason for her non appearance. Since 4[th] and 11[th] defendants are out of station, they could not appear before the court. She has produced a medical certificate which would show that she was advised to take rest for a period of 45 days from 04.12.2018 onwards. Ext.A1 is the medical certificate issued by Dr. Raghuram A Krishna of Starcare Hospital, Kozhikode. Ext.A1 would show that the petitioner had complaint of intermittent chest pain for which she was undergoing long medication and considering this she was advised to take rest for a period of 45 days. Here the petitioner claims that she was suffering from heart disease and -8- F.A.O.No.18 of 2021 she was undergoing treatment on Starcare Hospital, Kozhikode. But during the cross-examination she admitted that there is no particular disease/difficulties on that date and it was also admitted that the angioplasty was done to her four years prior to the date of issuance of certificate. In Ext.A1 what was her difficulty and why she was advised to take rest is not specifically mentioned and the Doctor who issued Ext.A1 certificate is not examined before the court. The records show that, the suit was filed in the year 2009 and the case was listed in the year The 2018 and without any sufficient reason she did not appear before the court. The evidence of PW1 and Ext.A1 document is not sufficient to show that she had sufficient reason for her non appearance before the court on the date posted for the trial of the case. Hencce, the petitioner is dismissed.” 5. In R.P.I.A.No.341 of 2019, the 1[st] respondentplaintiff filed counter, contending that the petition is not maintainable either in law or on facts. It was also contended that, the fact that the 8[th] defendant could not appear before the court and adduce evidence due to her illness is not correct. The suit was filed in the year 2009. It is the tactics of the defendant to become ex parte when the case is posted for -9- ## F.A.O.No.18 of 2021 evidence and thereafter file petition for setting aside the ex parte decree, in order to protract the case. The appellant-8[th] defendant has filed R.P.I.A.No.341 of 2019 along with 4[th] and 11[th] defendants. Even if the 8[th] defendant was laid up, the other defendants can come before the court and adduce evidence. The 1[st] respondent-plaintiff is aged 85 years. In order to delay the case and with an intention to cause injury to the plaintiff that the 8[th] defendant filed the aforesaid application. 6. 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 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 -10- F.A.O.No.18 of 2021 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. 7. 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 -11- F.A.O.No.18 of 2021 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. 8. 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 court immediately and within -12- F.A.O.No.18 of 2021 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 **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 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 mala fide 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. -13- F.A.O.No.18 of 2021 ## 10. In **Robin Thapa v. Rohit Dora [(2019) 7 SCC** **359]** , the Apex Court condoned the delay in filing application under Order IX Rule 13 of the Code of Civil Procedure, 1908, to set aside the ex-parte decree dated 09.10.2014 of Civil Judge, Senior Division, Dehradun. That application was filed on 02.10.2015, which was supported by an application for condonation of delay. The trial court condoned the delay and allowed the application to set aside the ex-parte decree. That order was set aside by the High Court. On the facts of the case, the Apex Court noticed that the appellant came to be served with the notice of the execution proceedings through special messenger on 27.03.2015. Thus, the case of the appellant that he came to know about the passing of the decree only on 17.11.2015 cannot be acted upon. In the execution of the decree, sale deed has been executed in favour of the respondent and it is only thereafter that despite the receipt of the notice dated 27.03.2015, the appellant has set up the case that he came to know about the passing of decree only several months thereafter. Considering the fact -14- ## F.A.O.No.18 of 2021 that the matter arises from a suit for specific performance, which is undoubtedly a discretionary relief, and since the appellant was prepared to deposit the entire amount spent by the respondent for getting the sale deed executed, the Apex Court found that the interest of justice demands that subject to putting the appellant on terms, he should be given an opportunity to contest a case. Accordingly, the appeal was allowed and the impugned order was set aside subject to the conditions that the appellant will deposit a sum of Rs.67,400/towards stamp duty and registration charges paid by the respondent, within a period of one month from the date of judgment, in the execution court and a further deposit of Rs.50,000/- as cost to be paid to the respondent. A reading of the judgment of the Apex Court would make it explicitly clear that the Apex Court has taken a lenient view considering the fact that the suit is one for specific performance and also the extent of delay, etc. 11. In the instant case, the appellant-8[th] defendant is a senior citizen, who is presently aged 73 years. At the same -15- F.A.O.No.18 of 2021 time, the 1[st] respondent-plaintiff is also a senior citizen, who is aged about 89 years. Admittedly, R.P.I.A.No.341 of 2019 is one filed by the appellant-8[th] defendant along with 2 others, within the period of limitation. If, as a matter of fact, there was an attempt on the part of the appellant in protracting the final disposal of O.S.No.2 of 2009 or the cause shown for her absence on 15.01.2019 was not fully satisfactory, the Sub Court ought to have allowed R.P.I.A.No.341 of 2019, on payment of cost. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the reasoning of the Sub Court in the impugned order, for dismissing R.P.I.A.No.341 of 2019 cannot be sustained in law. 12. In the result, this appeal is allowed by setting aside the order dated 08.12.2020 in R.P.I.A.No.341 of 2019 in O.S.No.2 of 2009, on payment of cost of Rs.5,000/- (Rupees Five thousand only), within three weeks from the date of receipt of a certified copy of this judgment. On such payment, the _ex parte_ decree in O.S.No.2 of 2009 will stand set aside. Since the suit is of the year 2009, the Sub Court shall -16- F.A.O.No.18 of 2021 dispose of O.S.No.2 of 2009, as expeditiously as possible, at any rate, within a period of four months from the date of production of a certified copy of this judgment, if there is no other legal impediment. **Sd/ANIL K.NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** AV/19/2