M.V. Francis Oommen v. Mathew Varghese and Claramma Mathew

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 16[TH] DAY OF AUGUST 2022 / 25TH SRAVANA, 1944 ``` ## **`OP(C) NO. 711 OF 2022`** ``` AGAINST THE ORDER/JUDGMENT IN IA 480/2018 IN OS 621/2016 AND ORDER IN ``` ## **`CMA 5/2019 OF SUB COURT, THIRUVALLA`** ## **`PETITIONER/S:`** ``` 1M.V.FRANCIS OOMMEN, AGED 69 YEARS S/O. M.O. VARGHESE, MELAMPARAMBIL VEEDU, NADUVILEMURIYIL, NEDUMPRAM VILLAGE, THIRUVALLA TALUK, PIN 689 110. 2TESSY F OOMMEN, AGED 62 YEARS W/O. M.V. FRANCIS, OOMMEN, MELAMPARAMBIL VEEDU, NADUVILEMURIYIL, NEDUMPRAM VILLAGE, THIRUVALLA TALUK, PIN 689 110. BY ADVS. P.HARIDAS P.C.SHIJIN SHIJIMOL M.MATHEW RISHIKESH HARIDAS BIJU HARIHARAN ``` ## **`RESPONDENT/S:`** ``` 1MATHEW VARGHESE, S/O. M.O. VARGHESE, MELAMPARAMBIL VEEDU, NADUVILEMURIYIL, NEDUMPRAM VILLAGE, THIRUVALLA TALUK, PIN 689 110. 2CLARAMMA MATHEW, W/O. MATHEW VARGHESE, MELAMPARAMBIL VEEDU, NADUVILEMURIYIL, NEDUMPRAM VILLAGE, THIRUVALLA TALUK, PIN 689 110. BY ADVS. REJI GEORGE JOE JOSEPH KOCHIKUNNEL(K/307/1995) BINOY DAVIS(K/1254/2012) SAISANKAR.S(K/002188/2021) VARNA MANOJ(K/552/2016) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 OP(C) No.711 of 2022 ## **C.S DIAS,J.** **--------------------------OP(C) No.711 of 2022 ----------------------------Dated this the 16[th] day of August, 2022.** ## **JUDGMENT** The original petition is filed to set aside the order in IA No.480/2018 in OS No.621/2016 (Ext P12) of the Court of the Munsiff, Thiruvalla (Trial Court) and the order in CMA No.5/2019 (Ext P14) of the Court of the Subordinate Judge, Thiruvalla (Appellate Court). 2. The concise case of the petitioners, shorn of exhaustive pleadings, in the original petition is that, they are the defendants in OS No.621/2016 filed by the respondents, before the Trial Court, for a decree of injunction. At the time when the summons was issued in the suit to the petitioners, they were facing a difficult situation in their lives as their son was diagnosed with a rare malignant tumour. They were advised that he had to be treated in the United States of America (U.S.A) The Oncologist of the Aster Medicity Hospital issued Ext P2 3 OP(C) No.711 of 2022 reference letter. The first petitioner and son travelled to USA on 15.1.2017 and returned on 20.5.2017. Both the petitioners were worried and anxious regarding the health of their son. The petitioners were set ex-parte in the suit on 3.1.2017. Before proceeding to USA, the first petitioner had made arrangements to file an application to set aside the ex-parte order, which was allowed on 13.1.2017. On 23.1.2017, the case was posted for written statement. As the 1[st] petitioner was abroad and the petitioners were totally shattered with the treatment of their son, they could not contact their Counsel and file the written statement. On 23.6.2017, they sought time to file written statement. However, they were again set exparte for not filing the written statement. Even though the petitioners had filed IA No.2432/2017 to set aside the said order, the Trial Court dismissed the said application by Ext P6 order. The respondents then filed their chief affidavit and the suit was decreed. Thereafter, the petitioners filed IA No.480/2018 (Ext P10) to set aside the ex-parte decree. The same was objected to by the 4 OP(C) No.711 of 2022 respondents who filed Ext P11 written objection. The Trial Court dismissed Ext P10 by the impugned Ext P12 order, which has been confirmed by the Appellate Court by Ext P14 order. Exts P12 and P14 are erroneous and wrong. Hence, the original petition. 3. Heard; Sri.P.Haridas, the learned counsel appearing for the petitioners and Sri.Reji George, the learned counsel appearing for the respondents. 4. The point is whether there is any illegality or irregularity in Exts.P12 and P14 orders passed by the courts below. 5. Ext.P1 plaint was instituted on 18.11.2016. It is evident from Ext P2 medical certificate that the son of the petitioners was afflicted with a malignant tumour and was referred for better treatment to the University of Kansas Cancer Centre, U.S.A. Ext P3 shows their travel to USA where the petitioners’ son had undergone treatment. The petitioners were set ex-parte. Even though the ex-parte order was set aside, the petitioners could not file written 5 OP(C) No.711 of 2022 statement within the stipulated time period. Again, the court below, set them ex parte. Then the Trial Court proceeded with the trial and the suit was decreed on 20.1.2018. Thereafter, the petitioners had filed Ext P10 application to set aside the ex parte decree, which was also dismissed by the Trial Court by Ext P12 and confirmed by the Appellate Court by Ext P14 order. 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 the defendant has made out 'sufficient cause' for his non-appearance 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 Ext P12 order passed by the Trial Court , it is seen that the Trial Court has declined to set aside the ex-parte decree on the ground that the 6 OP(C) No.711 of 2022 petitioners were set ex-parte on 3.1.2017, 23.6.2017 and 30.11.2017. 8. Going by the law laid down in **G.P.Srivastava** (supra), the Trial Court ought not to have looked into the antecedents of the petitioners, who did not contest the proceedings and could not file written statement. The crucial aspect was whether the petitioners had stated sufficient cause to set aside the ex parte decree as stated in Ext P10 application. Instead, the Trial Court and the Appellate Court have gone into the antecedents of the petitioners which is erroneous and wrong. 9. Going by the materials on record, particularly Ext P2 reference letter, Ext P3 passport and Ext P4 report of the petitioners’ son , I find that the petitioners have stated cause and a valid and sufficient very bonafide reason for their absence for not contesting the suit. 7 OP(C) No.711 of 2022 10. 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 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'. 11. 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. 12. On an appreciation of the pleadings and materials on record and the law referred to the aforecited decisions, especially the fact that the petitioners were not in a proper state of mind due to the affliction of the son, I 8 OP(C) No.711 of 2022 am of the view that a lenient view has to be taken in the matter and the ex-parte decree has to be conditionally set aside by putting the petitioners to terms. 13. To do complete justice in the matter to both sides, especially considering the fact that the petitioners and respondents are senior citizens, I am of the view that the Trial Court is to be directed to give top most priority to the suit to dispose it of in a time frame, and the respondents be adequately compensated for the inconvenience caused to them, subject to the condition that the petitioners be permitted to contest the suit on merits. Thus, I am inclined to exercise the supervisory jurisdiction of this Court under Article 227 of the Constitution of India and set aside the impugned Exts P12 and P14 orders. 9 OP(C) No.711 of 2022 In the result, the original petition is allowed in the following manner: (i) The order dated 30.10.2018 in I.A. No.480/2018 in O.S.621/2016 of the Court of the Munsiff, Thiruvalla and the order dated 15.2.2022 in C.M.A 5/2019 of the Court of the Subordinate Judge, Thiruvalla are set aside, on condition that the petitioners pay an amount of Rs.15,000/- as cost to the learned counsel appearing for the respondents before this Court and file a memo to the effect before the Trial Court within a period of two weeks from the date of receiving a certified copy of this judgment. (ii) If condition No.(i) is complied by the petitioners, the above-mentioned orders will stand set aside and the suit would stand restored to file, and the counsel for the parties shall mark their appearance before the Trial Court on 15.9.2022. 10 OP(C) No.711 of 2022 (iii) The petitioners shall file their written statement, if any, on or before 13.9.2022. Thereafter, the court below shall consider and dispose of the suit, in accordance with law, as expeditiously as possible, at any rate, within a period of six months from the filing of the written statement. sks/16.8.2022 **SD/- C.S.DIAS, JUDGE** 11 OP(C) No.711 of 2022 ## **`APPENDIX OF OP(C) 711/2022`** ``` PETITIONER EXHIBITS ``` - `Exhibit P1 TRUE COPY OF THE PLAINT IN O.S NO. 621/2016 BEFORE THE MUNSIFF COURT, THIRUVALLA DATED 18.11.2016.` - `Exhibit P2 THE LETTER OF THE ONCOLOGIST , ASTER MEDCITY, KOCHI, ADDRESSED TO EMBASSY OF USA AT OMAN DATED 22.12.2016` - `Exhibit P3 TRUE COPY OF THE PASSPORT OF THE PETITIONER.` - `Exhibit P4 TRUE COPY OF THE CERTIFICATE ISSUED BY MD ANDERSON HOSPITAL, HOUSTON, TEXAS, DATED 20.09.2019.` - `Exhibit P5 TRUE COPY OF THE COVERING LETTER SENT THROUGH E- MAIL BY MD ANDERSON HOSPITAL, HOUSTON, TEXAS, DATED 25.03.2022.` - `Exhibit P6 TRUE COPY OF THE I.A. NO. 2432/2017 IN O.S. NO. 621/2016 BEFORE THE MUNSIFF COURT, THIRUVALLA DATED 24.7.2017.` - `Exhibit P7 TRUE COPY OF THE ORDER SHEET ON IA NO. 2432/17 IN OS. NO. 621/2016 OF THE MUNSIFF COURT, THIRUVALLA AS ENDORSED ON THE APPLICATION.` - `Exhibit P8 TRUE COPY OF THE EXPARTE DECREE IN O.S. NO. 621/2016 OF THE MUNSIFF COURT, THIRUVALLA DATED 20.01.2018.` - `Exhibit P9 TRUE COPY OF THE JUDGMENT IN O.S. NO. 621/2016 OF THE MUNSIFF COURT, THIRUVALLA DATED 20.01.2018.` - `Exhibit P10 TRUE COPY OF THE I.A. NO. 480/2018 IN O.S. NO. 621/2016 OF THE MUNSIFF COURT, THIRUVALLA DATED 17.2.2018.` - `Exhibit P11 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS/PLAINTIFFS DATED 30.10.2018.` ``` Exhibit P12TRUE COPY OF THE ORDER ON I.A. NO. ``` 12 OP(C) No.711 of 2022 ``` 480/2018 IN O.S. NO. 621/2016 OF THE MUNSIFF COURT, THIRUVALLA DATED 30.10.2018. Exhibit P13TRUE COPY OF THE MEMORANDUM IN CMA NO. 5/2019 BEFORE THE SUB COURT, THIRUVALLA DATED 15.06.2019. Exhibit P14TRUE COPY OF THE ORDER IN CMA NO. 5/2019 OF SUB COURT, THIRUVALLA DATED 15.02.2022. ```