Mooppumura KulusunaiKer Chandrasekharan Naikker v. Kalyani 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** **MONDAY, THE 28[TH] DAY OF FEBRUARY 2022 / 9TH PHALGUNA, 1943** **F.A.O.NO. 158 OF 2007** **AGAINST THE ORDER DATED 16.11.2006 IN I.A.NO.3303 OF 2006 IN O.S.NO.69 OF 1993 OF THE PRINCIPAL SUB COURT, NORTH PARAVUR** ## **APPELLANT/PLAINTIFF/PETITIONER:** **MOOPPUMURA KULUSUNAIKER CHANDRASEKHARAN NAIKKER, NEPHEW OF KULASU NAIKKER, KUTTIPUZHAKATHOOT, SOUTH ADUVASSERY KARA, KUNNUKARA VILLAGE. BY ADVS. SRI.S.SHYAM SRI.BOBBYMATHEW KOOTHATTUKULAM** ## **RESPONDENTS/DEFENDANTS/RESPONDENTS:** - **1 KALYANI, KUTTIPUZHAKATHOOT, SOUTH ADUVASSERY KARA, ALROOR PAKUTHY (DIED)*** - **2 MANOJ, S/O. PALAKSHY -DO- -DO-.** - **3 UTHAMAN, S/O. PALAKSHY -DO- -DO-.** - **4 JYOTHI, D/O. PALAKSHY -DO- -DO-.** - **5 PALAKSHY, KUTTIPUZHAKATHOOT, -DO- -DO-.** ***THE 1ST RESPONDENT IS NO MORE AND HER LEGAL REPRESENTATIVES I.E., RESPONDENTS 2 TO 4 (GRANDCHILDREN) AND RESPONDENT 5 (DAUGHTER), WHO ARE ALREADY IN THE PARTY ARRAY ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 1ST RESPONDENT AS PER ORDER IN FAO 158 OF 2007 DATED 21.03.2022.** 2 F.A.O.No.158 of 2007 **BY ADVS. P.R.VENKATESH G.KEERTHIVAS** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 28.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 F.A.O.No.158 of 2007 ## **JUDGMENT** ## Anil K. Narendran, J The appellant is the plaintiff in O.S.No.69 of 1993 on the file of the Principal Sub Court, North Paravoor, a suit for fixation of boundary and for eviction of the defendants from the plaint schedule building. On 26.08.2006, the suit was ordered to be included in the list for trial and posted to 18.09.2006. On that date, when the suit was called, the plaintiff was absent and there was no representation on his side. Therefore, the court below dismissed the suit for default. The plaintiff filed I.A.No.3303 of 2006, an application filed under Order IX, Rule 9 of the Code of Civil Procedure, 1908, seeking an order to restore the suit to file. In the affidavit filed in support of that application, it was stated that the mother of the plaintiff was bedridden and as such he could not appear in court on 18.09.2006. The defendants opposed that interlocutory application by filing counter affidavit, raising various contentions. The court below by the order dated 16.11.2006 dismissed that application. The reasoning of the court below in paragraph No.8 of that order is as follows: '8. No evidence has been adduced from the petitioner's side to establish his case. Therefore the petitioner has no 4 F.A.O.No.158 of 2007 sufficient cause for his non-appearance when the suit was called on for hearing. The point is found against the petitioner.' 2. Feeling aggrieved, the appellant is before this Court in this appeal filed under Order XLIII, Rule 1(c) of the Code of Civil Procedure, 1908. 3. On 21.06.2007, when this appeal came up for admission, this Court issued notice to the respondentsdefendants. 4. Heard the learned counsel for the appellant-plaintiff and the learned counsel for the respondents-defendants. 5. O.S.No.69 of 1993 is one filed by the plaintiff seeking fixation of boundary and for eviction of the defendants from the plaint schedule building. On 18.09.2006, the court below dismissed the said suit for default, since the appellant-plaintiff was absent and there was no representation on his side, when the suit was listed for trial. The appellant-plaintiff filed I.A.No.3303 of 2006, an application under Order IX, Rule 9 of the Code seeking restoration, which ended in dismissal by the impugned order dated 16.11.2006. 6. The learned counsel for the appellant-plaintiff would 5 F.A.O.No.158 of 2007 point out that though the application for restoration was one filed within the period of limitation and sufficient cause was shown for non-appearance of the plaintiff before the court below on 18.09.2006, the court below rejected that application, without stating any valid reasons. 7. Per contra, the learned counsel for the respondentsdefendants would contend that, in the absence of any evidence that the non-appearance of the plaintiff on 18.09.2006 was for sufficient cause, the court below rightly rejected I.A.No.3303 of 2006. 8. Order IX, Rule 8 of the Code of Civil Procedure deals with procedure where defendant only appears. As per Order IX, Rule 8, where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. 9. Order IX, Rule 9 of the Code provides that decree against plaintiff by default bars fresh suit. As per sub-rule (1) of 6 F.A.O.No.158 of 2007 Rule 9, where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the court that - there was sufficient cause for his non appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. As per sub-rule (2) of Rule 9, no order shall be made under this rule unless notice of the application has been served on the opposite party. 10. 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 fit, and shall appoint a day for 7 F.A.O.No.158 of 2007 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. 11. 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 8 F.A.O.No.158 of 2007 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. 12. 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 the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not malafide 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 F.A.O.No.158 of 2007 ## 13. In **M. Shivananda v. M. Susheela and others** **[2021 (5) KHC 357]** a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party held that, Order IX, Rule 9 of the Code of Civil Procedure enables the court to set the dismissal aside, if the plaintiff satisfies the court that there - was sufficient cause for his non appearance when the suit was called on for hearing. On the other hand, Order IX, Rule 13 of the Code enables the court which passed a decree _ex parte_ to set it aside, if the defendant 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. Therefore, the principle laid down by the Apex Court in **G.P. Srivastava [(2000) 3 SCC 54]** , in the context of an application filed under Order IX, Rule 13 of the Code, apply with equal force in the consideration of an application filed under Order IX, Rule 9 of the Code. 14. 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 in which one among us [Anil K. Narendran, J] was a party held that, on an application filed under Order IX, Rule 13 of the Code of Civil 10 F.A.O.No.158 of 2007 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 malafide 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. 15. In **Robin Thapa v. Rohit Dora [(2019) 7 SCC 359]** the Apex Court held that, ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that, as far as possible, adjudication be done on merits. 16. In **Robin Thapa** 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 11 F.A.O.No.158 of 2007 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 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 12 F.A.O.No.158 of 2007 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. 17. In the instant case, the application for restoration filed by the appellant-plaintiff as I.A.No.3303 of 2006 is one filed within the period of limitation. The reason stated in the said application for non-appearance of the appellant-plaintiff on 18.09.2006 was that, on 16.09.2006, the plaintiff received a phone call from Mangalore that his mother is not keeping well and therefore, he had to rush to Mangalore on the same day. Viewed in the light of the law laid down in the decisions referred to supra, we find that when the application for restoration is one filed within the period of limitation, the court below went wrong in rejecting the same on the ground that the plaintiff has not adduced evidence to establish his case that his non-appearance on 18.09.2006, when the suit was listed for trial, was on sufficient cause. 13 F.A.O.No.158 of 2007 18. In the above circumstances, this appeal is allowed by setting aside the impugned order dated 16.11.2006 of the Principal Sub Court, North Paravur, in I.A.No.3303 of 2006 in O.S.No.69 of 1993 and the said suit is restored to file. 19. Since the suit is of the year 1993, the court below shall finally dispose of O.S.No.69 of 1993 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. Both the parties are directed to appear before the court below on **14.03.2022** . Sd/- ## **ANIL K.NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** dkr