K.J. Selin v. C.P. David and others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Muhammed Mustaque
Shoba Annama Eapen
Judgment Date: 2022-10-10
Court Decision / Holding: This appeal is dismissed. No order as to costs.
Final Disposition: Appeal dismissed

Parties to the Case

Appellants / Petitioners

K.J. Selin

Respondents

C.P. David
Mary (Addl.R2)
Santha (Addl.R3)
Shaly (Addl.R4)
Denny (Addl.R5)

Legal Representation & Advocates

Counsels for Petitioners

• Gracious KuriaKose (Sr.)
• George Mathews
• Pranoy K. Kottaram

Counsels for Respondents

• K.M. Jamaludheen
• Latha Prabhakaran

Case Synopsis & Summary

This High Court of Kerala, in FAO No. 20 of 2019, reviews an appeal from an order in OS No. 300 of 2011 before the Principal Sub Court, Kozhikode. The defendant (appellant) challenged ex parte decree dated 09-08-2017 and the subsequent denial of condonation applications I.A. Nos. 2774/2017 and 2775/2017 for setting aside the ex parte order, along with a delay in filing. The Sub Court, on 23-07-2018, allowed the applications subject to payment of Rs. 10,000 as costs by 04-08-2018; however, the defendant failed to comply, leading to dismissal of the I.As on 10-08-2018. The appellant argued she was unemployed, had a road accident, and was undergoing treatment, which prevented timely payment and petitioning for extension; she urged that there was no willful laches and prayed for one more opportunity to contest on merits. The respondent-plaintiff, C.P. David (died), and his legal representatives (ADDL. R2–R5) contended that the defendant had not come with clean hands, suppressing material facts and a separate restoration petition (I.A.1510/2018) was filed, which was not disclosed in the appeal. The court, while noting laches, ultimately applied the clean hands doctrine and, citing the Indian Supreme Court’s Chengalvaraya Naidu principle, held that the appellant was not entitled to relief and dismissed the appeal, with no order as to costs.

Provisions of Law Cited

Code of Civil Procedure, 1908; Order XLIII, Rule 1(d)

Legal Doctrines & Maxims

Clean hands doctrine (S.P. Chengalvaraya Naidu v. Jagannath)
Judicial process sacrosanct; no one should abuse the court process

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that she is an unemployed lady who cannot raise the Rs. 10,000 cost; she suffered an accident and was undergoing treatment, which impeded filing a petition for extension of time. She asserts there was no willful laches, and that she has a prima facie strong case on merits deserving an opportunity to contest. She asks for one more chance to deposit the cost and proceed on merits, emphasizing her personal health and financial constraints and alleging that the order was self-operating only if the cost was deposited by 04-08-2018. The relief sought is setting aside the ex parte decree and restoration of the interplays to enable adjudication on merits.

Contentions of Respondents

The respondents submit that the defendant approached the court with unclean hands by suppressing material facts, including the filing of I.A.1510/2018 for restoration of I.A.2775/2017 and the fact that I.A.2774/2017 was dismissed. They argue that the appellant failed to disclose this critical development in the appeal, and the court should not grant equitable relief. They emphasize that the proceedings show laches and abuse of process, and hence the appeal is liable for dismissal. They rely on the Chengalvaraya Naidu doctrine to contend that those who come with falsehoods are not entitled to relief.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
S.P. Chengalvaraya Naidu (dead) by L.Rs v. Jagannath (dead) by L.Rs and others	AIR 1994 SC 853	Positive	The court invokes the clean hands doctrine from this apex court decision to reject relief where the party has suppressed facts or acted with falsehood, thereby endorsing dismissal for unclean hands.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** # **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** ## **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN MONDAY, THE 10[TH] DAY OF OCTOBER 2022 / 18TH ASWINA, 1944 FAO NO. 20 OF 2019** [AGAINST THE ORDER IN I.A.NOS.2774/2017 AND 2775/2017 DATED 10.08.2018 IN OS 300/2011 OF PRINCIPAL SUB COURT / COMMERCIAL COURT, KOZHIKODE] ## **APPELLANT/PETITIONER/DEFENDANT:** K.J.SELIN@CELINE AGED 42 YEARS D/O. JOSEPH, CHIRAMMAL HOUSE, POONTHURUTHIPARAMBA, CHELAVOOR VILLAGE, MAYANAD DESOM P.O CHELAVOOR, KOZHIKODE, PIN 673 571. BY ADVS. GRASHIOUS KURIAKOSE (SR.) SRI.GEORGE MATHEWS SRI.PRANOY K.KOTTARAM ## **RESPONDENTS/RESPONDENTS/PLAINTIFF:** - 1 *C.P.DAVID S/O. C.P PAUL, CHIRAMMAL HOUSE, POONTHURUTHIPARAMBA, CHELAVOOR VILLAGE, MAYANAD DESOM, P.O CHELAVOOR, KOZHIKODE, PIN 673 571. * (DIED) - *ADDL.R2 TO R5 IMPLEADED. - 2 ADDL.R2.. MARY, W/O.LATE PAUL,AS THE LEGAL REPRESEMTATIVE OF LATE C.P.DAVID,CHIRAMMAL HOUSE,PERAMANGALAM (P.O.),THRISSUR,KERALA-680 545. ## F.A.O.No.20 of 2019 **:-** 2-: - 3 ADDLR3.. SANTHA, AGED 64,AS THE LEGAL REPRESENTQTIVE OF LATE C.P.DAVID, THEYYAYIL HOUSE,AMMADAM,THRISSUR-680 565. - 4 ADDL.R4:SHALY, AGED 52,AS THE LEGAL REPRESENTATIVE OF LATE C.P.DAVID,MAKBOOL AHAMMED.DOOR NO.3170.EDHIKA,NANJANGAT POST, KARNATAKA-571 303. - 5 ADDL. R5 . DENNY, AGED 49, AS THE LEGAL REPRESENTATIVE OF LATE - C.P.DAVID,CHIRAMMAL HOUSE,PERAMANGALAM (P.O.),THRISSUR,KERALA-680 545. - THE LEGAL REPRESENTATIVE OF DECEASED R1 IS IMPLEADED AS ADDL.R2 AS PER ORDER DATED 29/09/2022 IN IA 1/21 . - ** THE OTHER LEGAL REPRESENTATIVES OF DECEASED R1 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 3 TO 5 AS PER ORDER DATED 29/09/2022 IN I.A.1/22. BY ADVS. K.M.JAMALUDHEEN FOR ADDL.R2 AND R5 LATHA PRABHAKARAN FOR ADDL.R2 AND R5 THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 10.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## F.A.O.No.20 of 2019 **:-** 3-: ## **JUDGMENT** ## Shoba Annamma Eapen, J **:** This appeal is filed by the defendant in O.S.No.300 of 2011 on the file of the Principal Sub Court, Kozhikode. She filed I.A.Nos.2774 of 2017 along with I.A.No.2775 of 2017 seeking to set aside the exparte decree in the suit and to condone the delay of 66 days. The Sub Court as per order dated 23.07.2018, allowed the applications subject to payment of cost of Rs.10,000/- to be paid to the plaintiff on or before 04.08.2018. But the defendant failed to comply with the directions in the order and hence the I.As. were dismissed vide orders dated 10.08.2018. Challenging the said orders, the appellant has preferred this appeal under Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908. 2. Heard Sri.Gracious Kuriakose, the learned Senior Counsel, instructed by Adv.George Mathews, appearing for the appellant and also the learned counsel appearing for the respondents. 3. The appellant/defendant submits that she is an unemployed lady and could not raise a sum of Rs.10,000/- ## F.A.O.No.20 of 2019 **:-** 4-: ordered as cost. She further contended that she met with an accident and suffered serious injuries and was undergoing treatment and therefore, she was unable to file petition for extension of time to make the payment. Thereby she maintained that there was no willful laches or negligence on her part in not complying with the direction. The learned counsel submits that the defendant has got a good case in the suit and one more opportunity may be granted to her. 4. The first respondent/plaintiff in O.S.300 of 2011, C.P.David, died and his mother and siblings were impleaded as additional respondents 2 to 5. The learned counsel for the respondent submits that the defendant has come with unclean hands by suppressing facts. The learned counsel submits that pursuant to the dismissal of I.A.Nos. 2774 of 2017 and I.A.No.2775 of 2017, the defendant approached the Sub Court by filing I.A.No.1510/2018 in I.A.No.2775/2017 for restoration of the said I.A.No.2775/2017. Since the defendant did not file petition to restore I.A.2774 /2017, the court below dismissed I.A.1510/2018. The court below also found that the dismissal was not due to any ## F.A.O.No.20 of 2019 **:-** 5-: default, but due to the non-compliance of the order passed. It was further contended by the learned counsel for the respondent that this fact was suppressed by the defendant while filing the present Appeal. The petitioner has not come with clean hands and therefore, the court should not show any indulgence in their favour and the Appeal is only to be dismissed on that ground. 5. We have considered the rival contentions on both sides. The suit was decreed ex parte on 09.08.2017. Interlocutory application Nos.2774/2017 and 2775/2017 were filed on 14.11.2017, for condoning delay of 66 days in filing the petition for setting aside the ex parte order and to set aside the ex parte order. Considering the respective contentions, the court below on 23.07.2018 allowed the petitions, on costs of Rs.10,000/- and directed to pay cost on or before 04.08.2018. It was a self operating order. The order reads as follows:- “After hearing both sides and considering the respective contentions advanced on either side, I am satisfied that there is some laches on the side of petitioner. However, I am of the view that an opportunity has to be granted to the petitioner to contest the matter and dispose the matter on merit. But it should be on terms. Therefore the above petition and IA 2775/17 will be allowed on depositing an amount of Rs.10,000/- by the petitioner as cost F.A.O.No.20 of 2019 **:-** 6-: on or before 4.8.2018 failing which this petition will be dismissed. If the cost ordered is deposited, the same will be released to the respondent. For depositing cost 4.8.2018.” The defendant failed to comply with the direction and on 10.08.2018, the petitions were dismissed. 6. The learned counsel for the respondents handed over a copy of the order in I.A.No.1510/2018. On a perusal of the order, it is seen that the defendant has filed the Interlocutory application for restoring I.A.No.2775/2017 filed for setting aside the ex parte decree. I.A.2775/2017 was dismissed holding that I.A.No.1510/2018 is not maintainable since the defendant has not filed petition to restore I.A.2774/2017, which is filed for condoning the delay in filing I.A.2775/2017. 7. Subsequently, the defendant has filed the present appeal challenging the order passed in I.A.Nos.2774/2017 and 2775/2017 without disclosing the order passed in I.A.No.1510/2018 filed for restoration of I.A.No.2775/2017. The fact of filing I.A.No.1510/2018 and the consequent dismissal of that I.A was willfully suppressed by the defendant while filing this ## F.A.O.No.20 of 2019 **:-** 7-: appeal. The defendant has not approached this court with clean hands and hence not entitled for an equitable relief. The judicial proceedings are sacrosanct, and no person would be allowed to abuse the judicial process. The Court places implicit faith on the parties and their pleadings, as it does not indulge in any fact finding or roving enquiry of what has been asserted. A litigant who has approached this Court with unclean hands, without disclosing full facts, is not entitled for any relief. **8** . In **S.P. Chengalvaraya Naidu (dead) by L.Rs v. Jagannath (dead) by L.Rs. and others** (1995 (1) KLT SN 23 (C.No. 32) SC = AIR 1994 SC 853), the Apex Court has elucidated this doctrine thus: _“The courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the Court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.”_ F.A.O.No.20 of 2019 **:-** 8-: 9. On an appraisal of the facts of this case, we are of the view that the appellant/defendant is not entitled to get any relief as prayed for and this appeal is liable to be dismissed. Accordingly, this appeal is dismissed. No order as to costs. Sd/- **A.MUHAMED MUSTAQUE, JUDGE** sd/- **SHOBA ANNAMMA EAPEN,** **JUDGE** MBS/ ## F.A.O.No.20 of 2019 **:-** 9-: ## **APPENDIX OF FAO 20/2019** - PETITIONER ANNEXURES ANNEXURE 1 TURE COPY OF THE ORDER DATED 23-072018 IN I.A NO. 2774/2017 IN O.S NO. 300/11 BEFORE THE SUBORDINATE JUDGE, KOZHIKODE. - ANNEXURE 2 TRUE COPY OF THE ORDER DATED 23-072018 IN I.A 2775/2017 IN O.S NO. 300/11 BEFORE THE SUBORDINATE JUDGE, KOZHIKODE - ANNEXURE 3 TRUE COPY OF THE PRESCRIPTIONS DATED 02-07-2018 ISSUED BUY DR. C.K MUHAMMED NIYAZ. - ANNEXURE 4 TRUE COPY OF THE PRESCRIPTIONS DATED 20-12-2018 ISSUED BY DR. C.K MUHAMMED NIYAZ. - ANNEXURE 5 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 20/12/2018 ISSUED BY DR. C.K MUHAMMED NIYAZ. ANNEXURE A TRUE COPY OF THE MEDICAL CERTIFICATE DATED 02-07-2017 ISSUED BY DR. C.K MUHAMMED NIYAS, FATHIMA HOSPITAL, CALICUT EVIDENCING MY PHYSICAL CONDITION FOLLOWING IN THE ACCIDENT.