K.C. HAMSA v. V.V. ABDULLA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` WEDNESDAY, THE 14[TH] DAY OF JUNE 2023 / 24TH JYAISHTA, 1945 FAO NO. 264 OF 2015 ``` ``` AGAINST THE ORDER DATED 07.10.2015 IN I.A.NO.1132 OF 2015 IN O.S.NO.383 OF 2010 OF THE SUB COURT, TIRUR ``` ``` APPELLANT: ``` ``` K.C.HAMSA, AGED 47 YEARS, S/O. AHAMMED, KADAVATHU CHERIYAPARAMBIL, PACHATTIRI, PACHATTIRI P.O., PARIYAPURAM, TIRUR TALUK. ``` ``` BY ADVS.SRI.P.M.JOSHI SMT.SIJI K.PAUL ``` ## **`RESPONDENT:`** ``` V.V.ABDULLA, AGED ABOUT 55 YEARS, S/O. MUHAMMED HAJI, VATTIYAM VEETTIL HOUSE, PACHATTIRI AMSOM, PARAVANA DESOM, TIRUR TALUK, VAKKAD P.O., PIN- 686636. ``` ``` BY ADV SMT.DEEPA NARAYANAN ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 14.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 FAO No.264 of 2015 ## **JUDGMENT** ## Anil K. Narendran, J. The appellant is the defendant in O.S.No.383 of 2010 on the file of the Sub Court, Tirur, which was one filed by the respondent herein-plaintiff for realisation of an amount of Rs.3,00,000/- on the strength of a cheque alleged to have been issued by the appellant. In the said suit, the defendant was originally set _ex parte_ in the year 2014. The said order was set aside based on an application filed by the defendant. Thereafter, the suit was listed for trial on 02.06.2015. On 02.06.2015, there was no appearance for the appellant. However, an application was filed seeking adjournment. Therefore, the matter was adjourned to 03.06.2015. On that date, the counsel reported no instructions. Accordingly, the defendant was set _ex parte_ and an _ex parte_ decree was passed against him on 08.06.2015. Seeking an order to set aside that _ex parte_ decree dated 08.06.2015 in O.S.No.383 of 2010, the appellant filed I.A.No.1132 of 2015, an application under Order IX Rule 13 of the Code of Civil Procedure, 1908, within the period of limitation. The plaintiff filed counter opposing the relief sought for in that interlocutory application, by contending that the intention of the defendant is only to protract the matter. After considering the rival contentions, the Sub Court, Tirur by the order dated 3 FAO No.264 of 2015 07.10.2015, dismissed that application. Feeling aggrieved, the appellant is before this Court in this appeal, invoking the provisions under Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908. 2. On 09.12.2015, when this appeal came up for admission, this Court issued notice by speed post to the respondent. In I.A.No.No.1427 of 2015, this Court granted an interim order staying the execution of the decree passed in O.S.No.383 of 2010 of the Sub Court, Tirur, subject to the appellant furnishing security for the decree debt to the satisfaction of the execution court. 3. Heard the learned counsel for the appellant-defendant and also the learned counsel for the respondent-plaintiff. 4. The learned counsel for the appellant-defendant would submit that since I.A.No.1132 of 2015 in O.S.No.383 of 2010, the application under Order IX Rule 13 of the Code of Civil Procedure, was one filed within the period of limitation, the Sub Court ought to have allowed that interlocutory application, when the absence of the defendant was not _mala fide_ or intentional. 5. Per contra, the learned counsel for the respondentplaintiff would contend that as found by the court below, the intention of the appellant was only to protract the matter. The learned counsel would also point out that, on an earlier occasion, 4 FAO No.264 of 2015 i.e., in the year 2014, the appellant was set _ex parte_ . 6. Order IX, Rule 13 of the Code of Civil Procedure provides for setting aside of _ex parte_ decree 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 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 5 FAO No.264 of 2015 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 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 [(2000) 3 SCC 54]** , 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 6 FAO No.264 of 2015 and thereby condoned earlier. In a case where 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 **Peeves Enterprises v. Muhammed Ashraf [2015 (3) KHC 981]** , relying on the law laid down by the Apex Court in **G.P. Srivastava [(2000) 3 SCC 54]** , 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. 10. The principle laid down in **Peeves Enterprises [2015 (3) KHC 981]** was reiterated in **Shivananda M. v. M. Susheela [2021 (5) KHC 357]** . It was held that ‘sufficient cause’ for nonappearance refers to the date on which the absence was made a 7 FAO No.264 of 2015 ground for proceeding _ex parte_ and cannot be stretched to rely upon other circumstances anterior in time. If ‘sufficient cause’ is made out for the 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 a 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. 11. In view of the law laid down in the decisions referred to supra, when the application under Order IX, Rule 13 of the Code of Civil Procedure is one filed within the period of limitation, the discretion has to be exercised in favour of the defendant, when no negligence or inaction is imputable to the defendant and his absence was not _mala fide_ or intentional. For the absence of the defendant, the plaintiff can be compensated by adequate costs, since the defendant was set _ex parte_ earlier, in the year 2014, and the _lis_ decided on merits. 12. Considering the facts and circumstances of the case, in the light of the law laid down in the decisions referred to supra, we find that the order dated 07.10.2015 of the Sub Court, Tirur in 8 FAO No.264 of 2015 I.A.No.1132 of 2015 in O.S.No.383 of 2010 requires interference; however on payment of costs. 13. In the result, this appeal is allowed and the impugned order dated 07.10.2015 of the Sub Court, Tirur in I.A.No.1132 of 2015 in O.S.No.383 of 2010 is set aside on imposing a cost of Rs.3,000/- (Rupees Three thousand only) payable by the appellant-defendant to the respondent-plaintiff, within two weeks from the date of receipt of a certified copy of this judgment. On such payment being made, the impugned order dated 07.10.2015 of the Sub Court, Tirur in I.A.No.1132 of 2015 in O.S.No.383 of 2010 will stand set aside. Consequently, the _ex parte_ decree passed in O.S.No.383 of 2010 will stand set aside. Thereafter, the Sub Court shall proceed with the suit and dispose of the same, as expeditiously as possible, at any rate, within a period of four months. Both parties shall appear before the Sub Court, Tirur, **on** **03.07.2023.** Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** AV/17/6