Muhammed Ali Ottappokkil v. Ashraf E.K and Fasal @ Muthu

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 14[TH] DAY OF JUNE 2022 / 24TH JYAISHTA, 1944 ``` ## **`OP(C) NO. 2047 OF 2021`** ## **`AGAINST THE ORDER DATED 09.07.2021 IN IA 1/2020 IN CMA 20/2020 OF THE DISTRICT COURT,KOZHIKODE AND THE CONSEQUENTIAL DISMISSAL OF THE CMA. PETITIONER:`** ``` MUHAMMED ALI OTTAPPOKKIL AGED 58 YEARS S/O.ASSAIN HAJI, EDAKANDIYIL, KANJIRATHUMPOYIL HOUSE, SOUTH KODUVALLY, KODUVALLY AMSOM DESOM, THAMARASSERY TALUK, KOZHIKODE, PIN 673 572 ``` ``` BY ADV E.NARAYANAN ``` ## **`RESPONDENT/S:`** ``` 1ASHRAF E.K S/O.ASSAIN HAJI, KANJIRATHUMPOYIL HOUSE, SOUTH KODUVALLY, KODUVALLY AMSOM DESOM, THAMARASSERY TALUK, KOZHIKODE, PIN 673 572 ``` ``` 2FASAL @ MUTHU S/O.MUKAMED ALI, KANJIRATHUMPOYIL HOUSE, SOUTH KODUVALLY, KODUVALLY AMSOM DESOM, THAMARASSERY TALUK, KOZHIKODE, PIN 673 572 ``` ``` BY ADVS. N.V.MUHAMMED BASHEER NABIL KHADER ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14.06.2022, , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO. 2047 OF 2021 2 ``` ## **JUDGMENT** The Original Petition is filed to set aside the common order in I.A Nos 588/2019 in O.S No.369/2010 (Ext.P4) of the Court of the Additional Munsiff -I, Kozhikode and the orders in C.M.A No.20/2020 (Exts.P8 and P9) passed by the Court of the Principal learned District Judge, Kozhikode. 2. The concise case of the petitioner, shorn of exhaustive pleadings, in the original petition is that, he is the second defendant in the above suit, which is filed by the first respondent, seeking a decree, inter alia, to declare that the conveyance deeds are null and void and for injunction. The suit was listed for trial on 17.01.2019. As the petitioner was held up in Saudi Arabia, he could not attend the trial. Thus, Exhibit P2 ex-parte decree was passed. The petitioner returned to India on 05.02.2019 and ## **`OP(C) NO. 2047 OF 2021 3`** filed Exhibit P3 application to set aside the ex-parte decree. The Trial Court without considering Exhibit P3 application in its proper perspective, dismissed the application by Exhibit P4 order. Challenging Exhibit P4, the petitioner filed Exhibit P5 C.M.A No.20/2020 before the Court of the Principal District Judge, Kozhikode along with Exhibit P6 application to condone the delay of 205 days in fling Exhibit P5. The learned District Judge, without appreciating the materials on record, by the impugned Exhibits P8 and P9 orders, dismissed the application and appeal. Exhibit P4, P8 and P9 are erroneous and wrong. Hence, the original petition. 3. Heard; Sri.E.Narayanan, the learned counsel appearing for the petitioner and Sri.Nabil Khader, the learned counsel appearing for the respondents. 4. The short point that arises or consideration in this original petition is whether there is any illegality or irregularity in Exts.P4, P8 and P9 orders passed by the ## **`OP(C) NO. 2047 OF 2021 4`** court below? 5. Ext.P1 plaint was instituted by the first respondent, inter alia, seeking a decree to declare conveyance deeds as null and void. It is admitted that the petitioner was in Saudi Arabia and the suit was set ex-parte by Exhibit P2. Even though he filed Exhibit P3 application, the same was also dismissed. Challenging the said order, the petitioner filed Exhibit P5 appeal and P6 application to condone the delay of 205 days in filing Exhibit P5. However, the Appellate Court by Exhibits P8 and P9 orders, dismissed the above, on the finding that the petitioner has not made out sufficient cause to condone the delay of 205 days in filing the appeal. Resultantly, the Appellate Court confirmed Exhibit P2 decree passed by the court below. 6. In **G.P.Srivastava** v. **R.K.Raizada & Others** [2000 KHC 1023], the Hon'ble Supreme Court has held that the crucial aspect to be considered in an application filed under Order IX of the Code of Civil Procedure (Code) is whether ``` OP(C) NO. 2047 OF 2021 5 ``` the defendant has made out 'sufficient cause' for his nonappearance on the date the case was posted. The court is not bound to look into the antecedents of the defendant against whom an ex parte order/decree is passed. 7. On a perusal of the averments in the affidavit in support of Exhibit P6 application, that is to condone the delay of 205 days in filing Exhibit P5 appeal, the petitioner has categorically deposed that he was employed in Saudi Arabia and he was prevented from travelling to India to file the appeal. 8. A reading of Exhibits P8 and P9 orders passed by the appellate court, shows that the appellate court has also gone into the antecedents of the petitioner in prosecuting the case. 9. In **G.P.Srivastava** (supra), the Hon'ble Supreme Court has empathetically held that 'sufficient cause' contemplated under Order IX of the Code has to be liberally ``` OP(C) NO. 2047 OF 2021 6 ``` construed, so as to enable the Court to do complete justice between the parties. The term 'sufficient cause' is an elastic expression for which there is no hard and fast rule. The Court is to be given a wide discretion in deciding what is 'sufficient case'. 10. In **Robin Thapa v. Rohit Dora** [2019 KHC 6641], the Hon'ble Supreme Court has held that, ordinarily a litigation is based on adjudication on the merit of the contention of the parties and litigation may not be terminated by default of either the plaintiff or the defendant. The cause of justice does require that, as far as possible, adjudication be done on merits. 11. In the light of the pleadings and the averments in Exhibit P6 application, I find that the petitioner has stated sufficient cause to condone the delay of 205 days, which had to be liberally considered and decided by the court below. Nevertheless, both the courts have taken a hyper - technical stand and declined to condone the delay of 205 **`OP(C) NO. 2047 OF 2021 7`** days. According to me, the prejudice caused to the first respondent can be compensated by directing the petitioner to pay a reasonable amount as cost. Even though, I do not approve the attitude of the petitioner in protracting the determination of the above suit, I am of the view that the matter can be given a quietus, especially taking note of the fact that the suit is of the year, 2010, by directing the court below to consider and dispose of the same within a time frame. 12. On a comprehensive consideration of the pleadings and materials on record, the law laid down in the aforecited decisions, I am inclined to exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India and set aside Exhibits P4, P8 and P9 subject to the following conditions:- In the result, the original petition is allowed in the following manner: ``` OP(C) NO. 2047 OF 2021 8 ``` (i) Exhibits P4, P8 and P9 of the Court of the Additional Munsiff -I, Kozhikode and the orders of the Pricipal District Court, Kozhikode are set aside, on condition that the petitioner deposits an amount of Rs.10,000/- as cost before the Trial Court within a period of two weeks from the date of receiving the certified copy of this judgment. (ii) If condition No.(i) is complied with by the petitioner, Exhibits P4, P8 and P9 will stand set aside and O.S. No.369/2010 shall stand restored to file. Then the parties shall mark their appearance before the Trial Court on 11.07.2022 (iii) The deposited amount shall be released to the first respondent in accordance with law. (iv) On a consideration of the fact that the suit is of the year 2010, the Trial Court shall make every endeavour to consider and dispose of O.S. No.369/2010, in accordance with law, as expeditiously as possible, at ## **`OP(C) NO. 2047 OF 2021 9`** any rate, on or before 31.03.2023. (iv) It is made clear that, if the petitioner does not comply with the condition No. (i), Exhibits P4, P8 and P9 shall stand confirmed. Sd/- **C.S.DIAS JUDGE** rmm/14/06/2022 ## **`OP(C) NO. 2047 OF 2021 10`** ## **`APPENDIX OF OP(C) 2047/2021`** ``` PETITIONER EXHIBITS ``` - `Exhibit P1 TRUE COPY OF THE PLAINT IN O.S.NO.369/2010 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF COURT, KOZHIKODE` - `Exhibit P2 TRUE COPY OF THE I.A.NO.588/2019 IN O.S.NO.369/2010 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF COURT, KOZHIKODE` - `Exhibit P3 TRUE COPY OF THE COUNTER IN I.A.NO.588/2019 IN O.S.NO.369/2010 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF COURT, KOZHIKODE` - `Exhibit P4 TRUE COPY OF THE ORDER DISMISSING I.A.NO.588/2019 IN O.S.NO.369/2010 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF COURT, KOZHIKODE` - `Exhibit P5 TRUE COPY OF THE C.M.A NO.20/2020 ON THE FILE OF THE DISTRICT COURT, KOZHIKODE` - `Exhibit P6 TRUE COPY OF I.A.1/2020 TO CONDONE THE DELAY IN FILING THE C.M.A NO.20/2020 ON THE FILE OF THE DISTRICT COURT, KOZHIKODE` - `Exhibit P7 TRUE COPY OF THE COUNTER IN I.A.1/2020 IN C.M.A NO.20/2020 ON THE FILE OF THE DISTRICT COURT, KOZHIKODE` - `Exhibit P8 TRUE COPY OF THE ORDER DATED 8.7.2021 IN I.A.1/2020 TO CONDONE THE DELAY IN FILING THE C.M.A NO.20/2020 ON THE FILE OF THE DISTRICT COURT, KOZHIKODE` - `Exhibit P9 TRUE COPY OF THE JUDGMENT DATED 8.7.21 IN C.M.A NO.20/2020 ON THE FILE OF THE DISTRICT COURT, KOZHIKODE` ## **`OP(C) NO. 2047 OF 2021 11`** ## **`RESPONDENTS’ EXHIBITS`** ``` EXHIBIT R1(a) :-COPY OF THE COMMON ORDER PASSED IN IA NO.648/2019 AND IA NO.649/2019 IN OS NO.57/2016 ON TH FILE OF THE PRINCIPAL MUNSIFF COURT-I, KOZHIKODE. EXHIBIT R1(b):- COPY OF THE AFFIDAVIT FILED BY THE PETITIONER HEREIN IN IA NO.649/2019 IN OS NO.57/2016 ON THE FILE OF THE MUNSIFF COURT I – P, KOZHIKODE. ```