High Court of KeralaSingle Judge2017-10-04Disposed of with modification of condition for ...

Kollonnummal Sarojini and Others v. Puthanpurayil Sudheesh Kumar

Case / Petition Number:OP(C).No. 2269 of 2017 (O)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: ANIL K. NARENDRAN
Judgment Date: 2017-10-04
Court Decision / Holding: Original Petition disposed of by modifying condition No.2 in the impugned order: the petitioners must deposit Rs.50,000 before the court within three weeks, to be kept in a fixed deposit in a nationalised bank. The court directs expeditious disposal of the suit within six months from the conclusion of pre-trial steps. If written statements are yet to be filed, they must be filed within one month from the date of this judgment. The rest of the order remains.
Final Disposition: Disposed of with modification of condition for deposit; directions for faster disposal and statements as stated.

Parties to the Case

Appellants / Petitioners

Kollonnummal Sarojini
Kollonnummal Sunil
Kollonnummal Suma
Kollonnummal Geetha
Kollonnummal Reena
Kollummal Dhanesh
Kollunnummal Nisha

Respondents

Puthanpurayil Sudheesh Kumar

Legal Representation & Advocates

Counsels for Petitioners

• Sri. K.C. Santhoshkumar
• Sm. K.K. Chandralekha
• Sm. K.S. Sudha
• Sm. C. Leena

Counsels for Respondents

• Sri. Arun Ajay Shankar
• Sri. Jikku Sebastian George

Case Synopsis & Summary

This is an Original Petition (Article 227) before the Kerala High Court by the defendants-petitioners in O.S.323/2013, Thalassery, challenging the order dated 22 May 2017 of the Munsiff Court, Thalassery, in I.A.475/2017 accompanying O.S.323/2013. The Munsiff’s order imposed two conditions for setting aside the ex parte decree dated 19 October 2015: payment of Rs.3,000 as costs and deposit of half of the decree amount. The petitioners argue that the condition is unduly onerous and inconsistent with the discretion allowed under Order IX Rule 13 CPC, 1908, and Article 227, seeking to modify the condition and ideally set it aside. The respondent-plaintiff opposes the petition, seeking to uphold the lower court’s conditions to secure the decree amount and compensate for delays. The court notes a pertinent precedent in M/s. Peeves Enterprises v. Muhammed Ashraf (2015(3) KHC 981), which emphasizes sufficient cause and fair exercise of discretion, not imposing onerous conditions. Upon consideration, the High Court disposes the petition by reducing the onerous deposit condition to Rs.50,000, to be deposited within three weeks and kept in fixed deposit, and directs expeditious disposal of the suit (within six months) with a one-month limit to file written statements if not already done. Exhibits P1–P6 are acknowledged.

Provisions of Law Cited

Article 227 of the Constitution of IndiaOrder IX Rule 13, Code of Civil Procedure, 1908Section 5 of the Limitation Act, 1963

Legal Doctrines & Maxims

Sufficient cause doctrine for setting aside ex parte decrees (Order IX Rule 13 CPC)
Discretion of courts to impose conditions while allowing relief, not to be unduly onerous

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend the order imposing deposit of half the decree as a condition for setting aside the ex parte decree is excessive and unjust. Relying on Order IX Rule 13 CPC and Section 5 of the Limitation Act, they argue there is meritorious defense, no intentional delay, and that the decree was ex parte. They urge modification of the condition to a more reasonable sum (Rs.50,000) and emphasize the suit’s long pendency since 2013, requesting expeditious disposal. They rely on Peeves Enterprises v. Muhammed Ashraf to illustrate that conditions should not be too onerous and that compensation through costs may suffice where appropriate.

Contentions of Respondents

The respondent-plaintiff opposed the petition, seeking to uphold the lower court’s condition as a reasonable security measure to protect plaintiff’s interests, ensure payment if the ex parte decree is not set aside, and compensate for time lost. They argue the decree amount and costs justify a sturdy condition to avert misuse of delay. They advocate that the court’s discretion should be exercised with regard to the plaintiff’s rights and the integrity of the decree, and that the deposit ensures security and timely final disposal of the suit.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
M/s. Peeves Enterprises v. Muhammed Ashraf	2015(3) KHC 981	Positive	The High Court cites this decision to emphasize that when considering an application under Order IX Rule 13 CPC for setting aside an ex parte decree, the court must assess sufficient cause and avoid imposing onerous conditions; it supports reducing harsh deposit requirements.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 4TH DAY OF OCTOBER 2017/12TH ASWINA, 1939** **OP(C).No. 2269 of 2017 (O) --------------------------OS.323 OF THE MUNSIFF COURT, THALASSERY** **PETITIONER(S)/DEFENDANTS: ------------------------** ## **1. KOLLONNUMMAL SAROJINI,** **D/O KRISHNAN, NEDUMBAM VEEDU, P.O. PERUNTHATTIL, ERANHOLI AMSOM, PERUNTHATTIL DESOM, THALASSERY TALUK, KANNUR DISTRICT.** ## **2. KOLLONNUMMAL SUNIL,** **S/O SAROJINI, NEDUMBAM VEEDU, P.O. PERUNTHATTIL, ERANHOLI AMSOM, PERUNTHATTIL DESOM, THALASSERY TALUK, KANNUR DISTRICT.** ## **3. KOLLONNUMMAL SUMA,** **D/O SAROJINI, NEDUMBAM VEEDU, P.O. PERUNTHATTIL, ERANHOLI AMSOM, PERUNTHATTIL DESOM, THALASSERY TALUK, KANNUR DISTRICT.** ## **4. KOLLONNUMMAL GEETHA,** **D/O SAROJINI, NEDUMBAM VEEDU, P.O. PERUNTHATTIL, ERANHOLI AMSOM, PERUNTHATTIL DESOM, THALASSERY TALUK, KANNUR DISTRICT.** ## **5. KOLLONNUMMAL REENA,** **D/O SAROJINI, NEDUMBAM VEEDU, P.O. PERUNTHATTIL, ERANHOLI AMSOM, PERUNTHATTIL DESOM, THALASSERY TALUK, KANNUR DISTRICT.** **6. KOLLUMMAL DHANESH,** **S/O SAROJINI, NEDUMBAM VEEDU, P.O. PERUNTHATTIL, ERANHOLI AMSOM, PERUNTHATTIL DESOM, THALASSERY TALUK, KANNUR DISTRICT.** **OP(C).No. 2269 of 2017 (O)** **---------------------------** ## **7. KOLLUNNUMMAL NISHA,** **D/O SAROJINI, NEDUMBAM VEEDU, P.O. PERUNTHATTIL, ERANHOLI AMSOM, PERUNTHATTIL DESOM, THALASSERY TALUK, KANNUR DISTRICT.** **BY ADVS.SRI.K.C.SANTHOSHKUMAR SMT.K.K.CHANDRALEKHA SMT.K.S.SUDHA SMT.C.LEENA** **RESPONDENT(S):** **--------------** **PUTHANPURAYIL SUDHEESH KUMAR, S/O DAMODHARAN, RESIDING AT 'PUNYAM', P.O. CHIRAKKARA, THIRUVANGAD AMSOM, DESOM, THALASSERY TALUK, KANNUR DISTRICT - 670101.** **BY ADVS. SRI.ARUN AJAY SHANKAR SRI.JIKKU SEBAN GEORGE** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 04-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** ## **OP(C).No. 2269 of 2017 (O)** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 19.10.2015 IN OS.NO. 323/2013 ON THE FILE OF THE MUNSIFF COURT, THALASSERY EXHIBIT P2 TRUE COPY OF THE DECREE DATED 19.10.2015 IN OS.NO.323/2013 ON THE FILE OF THE MUNSIFF COURT, THALASSERY EXHIBIT P3 TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF IA.NO. 475/2017 EXHIBIT P4 TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OS IA.NO. 474/2017 EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 15.02.2017 IN OPC.NO. 571/2017 EXHIBIT P6 TRUE COPY OF THE TYPED ORDER DATED 22.5.2017 AND MADE IN IA.NO. 475/2016 RESPONDENT(S)' EXHIBITS -----------------------** **NIL TRUE COPY** **P.S. TO JUDGE** **EL** ## **ANIL K. NARENDRAN, J.** ## **----------------------------------------------O.P.(C) No.2269 of 2017 -----------------------------------------------** Dated this the 4[th] day of October, 2017 ## **J U D G M E N T** The petitioner, who are the defendant in O.S.No.323/2013 on the file of the Munsiff's Court, Thalassery is before this Court in this Original Petition filed under Article 227 of the Constitution of India, seeking an order to set aside the order dated 22.5.2017 of the said court in I.A.No.475/2017 in O.S.No.323/2013 to the extent of imposing a condition to deposit the half of the decree amount in order to set aside the ex parte decree. 2. On 6.7.2017 when this Original Petition came up for admission, this Court ordered that proceedings in O.S. No.323/213 shall be kept in abeyance for a period of two weeks. Thereafter, the Original Petition was admitted on file on 28.7.2017 and the said interim order was extended for a further period of one month. 3. Heard the learned counsel for the petitioners/ defendants and also the learned counsel for the respondent/ O.P.(C) No.2269 of 2017 :-2-: plaintiff. 4. The sole issue that arises for consideration in this Original Petition is as to the legality or otherwise of condition No.2 imposed in the impugned order dated 22.5.2017 whereby the petitioners/defendants are directed to deposit half of the decree amount before the court as a condition for allowing their application to set aside the ex-parte judgment and decree dated 19.10.2015. The said condition was imposed in addition to payment of a cost of Rs.3,000/-. 5. The pleadings and materials on record would show that O.S.No.323/2013 filed by the respondent/plaintiff is one for return of advance amount on the strength of an agreement for sale dated 24.3.2013 alleged to have been executed by the defendants in their favour. The said suit was decreed ex parte by Ext.P1 judgment dated 19.10.2015 for a sum of Rs.3,33,989/together with interest at the rate of 12% per annum from the date of suit till the date of decree and future interest at the rate of 6% per annum from the date of decree till realisation. In order to set aside the ex parte decree, the petitioners/defendants filed I.A.No.475/2017 under Order IX Rule 13 of the Code of Civil O.P.(C) No.2269 of 2017 :-3-: Procedure, 1908, which was accompanied by I.A No.474/2017, an application filed under Section 5 of the Limitation Act, 1963 seeking an order to condone the delay of 442 days in filing I.A.No.475/2017. The relief sought for in the said interlocutory applications were opposed by the respondent/plaintiff by filing objection. 6. After considering the rival contentions, the court below by Ext.P6 order dated 22.5.2017 allowed I.A No.475/2017 on imposing a cost of Rs.3,000/- payable to the respondent/ plaintiff and subject to a further condition that the petitioners/ defendants shall deposit half of the decree debt before the court. 7. In **M/s.Peeves Enterprises v. Muhammed Ashraf (2015(3) KHC 981)** a Division of Bench of this Court held that, on an application filed under Order IX Rule 13 of the Code, 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 O.P.(C) No.2269 of 2017 :-4-: compensated by adequate costs for the loss of time and the inconvenience caused to him. But any such condition shall not be too onerous. 8. In view of the law laid down in the decision referred as above, this Court finds it difficult to sustain condition No.2 imposed by the court below to deposit half of the decree amount as a condition for setting aside the ex parte order. 9. Considering the facts and circumstances of the case this Original Petition is disposed of modifying condition No.2 imposed by the court below in its order dated 22.5.2017 in I.A.No.475/2017 in O.S.No.323/2013 as one directing the petitioner/defendant to deposit a sum of Rs.50,000/- before the court below. The said amount shall be deposited within a period of three weeks from the date of receipt of a certified copy of this judgment and on such deposit being made, the court below shall keep the said amount in a fixed deposit in any nationalised Bank, subject to the out come of the suit. Since the suit is of the year 2013, the court below shall finally dispose of the matter as expeditiously as possible, at any rate, within a period of six months from the date of completion of O.P.(C) No.2269 of 2017 :-5-: pre trial steps. If the petitioners/defendants are yet to file written statement, they shall file the same within an outer limit of one month from this date. Sd **/ANIL K. NARENDRAN JUDGE** //True Copy// P.A to Judge ab