Mangalam Muraleedharan v. Bharathi

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **& THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 22ND DAY OF JANUARY 2018 / 2ND MAGHA, 1939** **FAO.No. 14 of 2018** **(AGAINST THE ORDER DATED 21.10.2017 IN IA NO.1442/2016 IN O.S.NO.772/2012 ON THE FILE OF THE PRINCIPAL SUBORDINATE JUDGE, PALAKKAD)** ## **APPELLANT(S)/PETITIONER:** **MANGALAM MURALEEDHARAN AGED 47 YEARS, W/O.MURALEEDHARAN, SRI DWADASI, 21/719, MUTHUKULATHU, NOORANI POST, PALAKKAD TALUK, PALAKKAD DISTRICT.** **BY ADVS.SRI.M.R.VENUGOPAL SMT.DHANYA P.ASHOKAN** ## **RESPONDENT/RESPONDENT:** **BHARATHI, AGED 65 YEARS, W/O.K.K.SANKARANARAYAN, HOUSE NO.267/7, SB NAGAR, THIRUMULLAVAYAL, CHENNAI-62, TAMILNADU.** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 22-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ss ## **P.N.RAVINDRAN, J &** ## **R.NARAYANA PISHARADI, J** **--------------------------------** ----------------------------------- **F.A.O.No.14 of 2018** ------------------------------------------------------------------Dated this the 22[nd] day of January, 2018 ## **JUDGMENT** ## _**P.N.Ravindran, J**_ The appellant is the plaintiff in O.S.No.772 of 2012 on the file of the Court of the Principal Subordinate Judge of Palakkad, a suit instituted by her for specific performance of an agreement for sale entered into with the defendant on 17.1.2011. She had in the plaint averred that on the date of the agreement the sum of Rs.5,00,000/- was paid as advance. She had produced along with the plaint, copies of two fixed deposit receipts to show that she possesses the means to pay the balance sale consideration. She had paid a total court fee of Rs.1,38,400/- on the plaint. 2. Upon receipt of summons, the defendant entered appearance and filed a written statement resisting the suit. After issues were framed and the balance court fee was paid, the suit stood listed for trial on 15.03.2016. On that day, though learned counsel on both sides were present, the plaintiff was absent. Consequently, the trial court dismissed the suit for default. It is relevant in this context to note that the plaintiff had on 15.03.2016 filed I.A.No.1024 of 2016 praying that the suit may be removed from the list, in view of the fact that she has to leave immediately 2 ## **F.A.O.No.14 of 2018** for Kuwait to be with her ailing husband, who was laid up with jaundice. In the affidavit filed in support of the application, she had prayed for an adjournment of the suit by a month. That application was numbered only on 23.03.2016 and therefore it was not taken up for consideration before the request for adjournment was rejected and the suit was dismissed for default on 15.03.2016. The application was thereafter closed in view of the fact that the suit was dismissed for default on 15.03.2016. The plaintiff thereupon filed I.A.No.1442 of 2016 under Order IX Rule 9 of the Code of Civil Procedure, within the time limit stipulated, with a prayer that the suit may be restored to file. The defendant opposed the application. After considering the rival contentions, the trial court dismissed the said application by order passed on 21.10.2017. The plaintiff has, aggrieved thereby, filed this appeal. 3. We heard Smt.Dhanya P.Ashokan, learned counsel appearing for the appellant and Sri.U.Balagangadharan, learned counsel appearing for the respondent. We have also gone through the pleadings and the materials on record. The proceedings paper discloses that the suit was listed for trial for the first time on 14.01.2016. It was adjourned to 15.03.2016 at the plaintiff's request. On that day, as she was absent, notwithstanding the fact that her counsel was present, the suit was dismissed for default. 3 ## **F.A.O.No.14 of 2018** The case put forward by the appellant in the application for restoration filed in the court below was that it has become necessary for her to go abroad to be with her ailing husband who is suffering from jaundice. The case now stated before us is that though the appellant had planned to go to Kuwait to be with her ailing husband, she could not go on 15.03.2016 as planned due to non-availability of flight ticket and that her counsel who did not properly understand her instructions, had filed an affidavit in the trial court to the effect that she has to go abroad on 15.03.2016. Learned counsel submitted with reference to a copy of the plaintiff's passport that she came back to India on 07.03.2016 and returned to Kuwait only on 31.03.2016 and that she was in India on 15.03.2016. Learned counsel submitted that the averment in the affidavit dated 14.03.2016, sworn to by the plaintiff that she has to go to Kuwait on 15.03.2016 was made without properly understanding the instructions given by her to her counsel and therefore it should not be held out against her. Learned counsel also submitted that the entire balance sale consideration has been kept ready and the said amount of Rs.10,000,00/- is even today lying in fixed deposit, that the plaintiff has paid the sum of Rs.1,38,400/towards court fee and if for want of proper pleadings, the impugned order is not set aside, the appellant will suffer irreparable injury and 4 ## **F.A.O.No.14 of 2018** loss. Referring to the decision of the Apex Court in _**G.P Srivastava v. R.K.Raizada** (AIR 2000 SC 1221)_ , learned counsel submitted that as the application is one filed within time, in the absence of any pleading by the defendant that the plaintiff's absence was malafide, the appeal may be allowed, the impugned order may be set aside and the suit restored to file, at least on terms. 4. _Per contra_ , learned counsel appearing for the respondent/defendant submitted that the plaintiff has not made out a case warranting interference, that the defendant has after the suit was dismissed for default, transferred the plaint schedule property to a third party on 30.05.2016 and therefore, the defendant will be put to serious prejudice if at this distance of time, the suit is restored to file. Learned counsel also submitted that as the plaintiff had come to court with a case that she had gone abroad on 15.03.2016, she was rightly non-suited by the court below. 5. We have considered the submissions made at the Bar by learned counsel appearing on either side. We have also gone through the pleadings and the materials on record. The materials on record disclose that the plaintiff has paid a total court fee of Rs.1,38,400/-. She has in the plaint averred that the balance sale consideration of Rs.10,00,000/- is ready with her and the said amount is lying in deposit. She has produced documents to prove 5 ## **F.A.O.No.14 of 2018** that fact. The Apex Court has in _**G.P Srivastava v. R.K.Raizada** (AIR 2000 SC 1221)_ , held that in a case where the defendant approaches the court immediately and within the time specified to have the exparte decree set aside, the discretion is normally exercised in his favour provided the absence was not malafide or intentional. The same principle will in our opinion apply in the case of an application by a plaintiff for an order restoring the suit to file. A Division Bench of this court has in _**Plantation Corporation of Kerala Ltd., v. Hussain** (1998(1) KLT 1008),_ held that even in cases where the plaintiff is not able to establish sufficient cause, the court should, depending upon the facts of the case, exercise its discretion to restore the suit. It was held, that is the reason why the legislature has given power to the court to set aside the order of dismissal “on such terms as to costs or otherwise as it thinks fit”. K.S.Radhakrishnan, J (as His Lordship then was) speaking for the Bench has observed that Order IX Rule 9 should receive a liberal construction when a party moves the court for restoration of the suit which was dismissed for default. 6. In the instant case, as stated earlier, the plaintiff has paid a court fee of Rs.1,38,400/-. The plaint was rejected on an earlier occasion, for non-payment of the balance court fee. The suit was restored to file on the balance court fee being paid. Thereafter, 6 ## **F.A.O.No.14 of 2018** the suit was listed on 14.01.2016 and removed from the list and adjourned to 15.03.2016 on the plaintiff's request. The plaintiff thereupon moved to have the suit adjourned on the ground that it has become necessary for her to go over to Kuwait on 15.03.2016 to be with her ailing husband. The suit was dismissed due to her non-appearance on 15.03.2016. She filed an application to have the suit restored to file on 19.03.2016 within the time limit stipulated for the purpose. It was only thereafter that the defendant disposed of his property to a third person on 30.05.2016. As a party to the suit, the defendant should have taken note of the fact that the plaintiff has the option of applying to have the order dismissing the suit for default, set aside. Such being the situation, we are of the opinion that merely for the reason that the defendant has transferred the property to a third party, the suit for specific performance should not be restored. Unless the transferee pleads and proves that she is a _bona fide_ purchaser, the plaintiff can be given a decree for specific performance in the event of her contentions being accepted. The plaintiff can in the event of specific performance being declined seek return of the advance money paid, together with interest. The advance amount paid is Rs.5,00,000/-. The defendant does not dispute having received the sum of Rs.5,00,000/- more than six years ago. Having regard to the 7 ## **F.A.O.No.14 of 2018** circumstances set out above, we are of the opinion that unless the suit is restored to file and the plaintiff is granted an opportunity to have the suit filed by her tried and disposed of on the merits, she will be put to irreparable injury and loss. It is evident from the fact that the plaintiff’s counsel was present in court on 15.03.2016, that it is not a case where the plaintiff was deliberately keeping away on lame excuses. The defendant has also not produced any material to show that the plaintiff was adopting dilatory tactics or acting with malafides. Having regard to the totality of the facts and circumstances of the case, we are of the opinion that to meet the ends of justice, the impugned order should be set aside and the suit restored to file on terms. We accordingly allow the appeal, set aside the impugned order and restore the suit to file subject to the condition that the appellant/plaintiff shall deposit the sum of Rs.7,500/- as costs for payment to the respondent/defendant in the trial court, on or before 19.03.2018. The court below shall for the purpose of verifying whether the sum of Rs.7,500/- has been deposited as costs within the time limit stipulated above, call the suit on 20.03.2018, and if on such verification it is found that the appellant has complied with the stipulation regarding deposit of costs, try and dispose of the suit on the merits. Having regard to the fact that the suit was instituted 8 ## **F.A.O.No.14 of 2018** in the year 2012, the learned trial Judge shall endeavor to try and dispose of the suit expeditiously. Needless to say, in the event of default on the part of the appellant to deposit the sum of Rs.7,500/as costs within the time limit stipulated above, the instant appeal shall stand dismissed. _Sd/-_ **(P.N.Ravindran, Judge)** _Sd/-_ **(R. Narayana Pisharadi, Judge)** _//True Copy//_ _P.A. To Judge_ ss