N. Basheer v. Sivasankara Menon

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` THURSDAY, THE 15[TH] DAY OF JUNE 2023 / 25TH JYAISHTA, 1945 ``` ``` FAO NO. 83 OF 2016 ``` ``` AGAINST THE ORDER DATED 18.02.2016 IN I.A.NO.2528 OF 2015 IN ``` ``` O.S.NO.190 OF 2012 OF SUB COURT, OTTAPPALAM APPELLANT/PETITIONER/DEFENDANT: ``` ``` N.BASHEER, AGED 41 YEARS S/O. NEDIYEDATH KUNJHAMMU HAJI, KURUVATTOR AMSOM DESOM, OTTAPALAM TALUK, PIN-679335. ``` ``` BY ADV SRI.DINESH MATHEW J.MURICKEN ``` ``` RESPONDENT/RESPONDENT/PLAINTIFF: ``` ``` SIVASANKARA MENON S/O. K. RUGMINI AMMA, RESIDING AT "SIVASAKTHI". VANIYAMKULAM AMSOM, PULACHITHRA DESOM, OTTAPALAM TALUK, PIN-679522. ``` ``` BY ADVS.SRI.ARUN MATHEW VADAKKAN SRI.SANTHEEP ANKARATH ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 15.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 F.A.O.No.83 of 2016 ## **JUDGMENT** ## Anil K. Narendran, J. The appellant is the defendant in O.S.No.190 of 2012 on the file of the Sub Court, Ottapalam, which was one filed by the respondent herein-plaintiff claiming damages to the tune of Rs.5,00,000/-. On 24.11.2015, when the case was listed for trial, the learned counsel for the appellant-defendant reported no instructions and therefore, the defendant was set _ex pate_ . By the order dated 24.11.2015, O.S.No.190 of 2012 decreed ex parte. The appellant filed I.A.No.2528 of 2015 in O.S.No.190 of 2012, an application under Order IX Rule 13 of the Code of Civil Procedure, 1908, seeking an order to set aside that _ex parte_ decree. In the affidavit filed in support of that application, it was stated that the appellant was suffering from acute back pain from 21.11.2015 and he was advised to take rest. Therefore, he could not give necessary instructions to his counsel. The respondent-plaintiff filed counter opposing the reliefs sought for in that interlocutory application by contending that the application is without any _bona fides_ ; the medical certificate produced by the defendant is not genuine; the defendant was available outside the court on 24.11.2015; on an earlier occasion, the _ex parte_ decree passed against the defendant was set aside. The appellant-defendant was 3 F.A.O.No.83 of 2016 examined as PW1 and Ext.A1 medical certificate was marked on his side. After considering the rival contentions, the court below dismissed I.A.No.2528 of 2015 by the order dated 18.02.2016. The reasoning of the court below, as contained in paragraph 7 of the order, reads thus; “7. The argument by the learned counsel for the respondent that the evidence of PW1 alone is sufficient to belie the case of the petitioner is well founded. The evidence of PW1 himself would go to show that Ext.A1 medical certificate is false. A perusal of Ext.A1 would go to show that it is dated 21.11.2015 and the doctor had advised rest for one week from 21.11.2015. According to the petitioner, he had consulted the doctor on 12.01.2016 and the doctor had advised rest for one week. He would further say that rest for one week started from 12.01.2016. PW1 also would say that he had consulted the doctor only once. Therefore, it is evident that the medical certificate produced along with the petition, i.e., Ext.A1 has nothing to do with the illness of the petitioner. It is evident that it is a fabricated document. It is further made clear by the admission of PW1 that during November 2015 he had come to the court 4-5 occasions. It is specifically admitted by him that on 24.11.2015 he had consulted his lawyer outside the court. Even according to the petitioner, the suit had come up in the list for trial on 24.11.2015. The evidence of PW1 would go to show that he was available in the court premises on that day. This evidence of PW1 would prove that the contention by the respondent is true. It is contended by the respondent that on 24.11.2015, the petitioner was in the court premises and 4 F.A.O.No.83 of 2016 he did not appear before the court wilfully. This contention by the respondent stands admitted by PW1. So, the evidence of PW1 would go to show that the petitioner has come up with a false affidavit and medical certificate and that it is also evident that he did not appear before the court wilfully when the matter had come up in the list for trial. It is evident that there is absolutely no bona fides in the petition and the petition is liable to be dismissed.” Feeling aggrieved by the aforesaid order, the appellant-defendant is before this Court in this appeal, invoking the provisions under Order XLIII, Rule 1(d) of the Code of Civil Procedure. 2. On 17.03.2016, when this appeal came up for admission, this Court issued notice to the respondent in both the appeal and the interlocutory application. 3. Heard the learned counsel for the appellant-defendant and also the learned counsel for the respondent-plaintiff. 4. The learned counsel for the appellant-defendant would submit that I.A.No.2528 of 2015 in O.S.No.190 of 2012, the application under Order IX Rule 13 of the Code of Civil Procedure, was one filed within the period of limitation. Therefore, the Sub Court ought to have allowed that application. 5. On the other hand, the learned counsel for the respondent-plaintiff would contend that the appellant failed to show sufficient cause for his absence. The learned counsel would 5 F.A.O.No.83 of 2016 point out that it is for the second time that the appellantdefendant was set _ex parte_ and therefore, the Sub Court cannot be found fault with in dismissing the interlocutory application, by the impugned order dated 18.02.2016. 6. Order IX, Rule 13 of the Code of Civil Procedure provides for setting aside of _ex parte_ decree 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 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 6 F.A.O.No.83 of 2016 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. ## 7. 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 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. 8. In **G.P. Srivastava [(2000) 3 SCC 54]** , the Apex Court held further that, ‘sufficient cause’ for non-appearance refers to the date on which the absence was made a ground for 7 F.A.O.No.83 of 2016 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 mala fide 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. In **Peeves Enterprises v. Muhammed Ashraf [2015** **(3) KHC 981]** , relying on the law laid down by the Apex Court in **G.P. Srivastava [(2000) 3 SCC 54]** , a Division Bench of this Court held that, on an application filed under Order IX, Rule 13 of the Code of Civil 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 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 compensated by adequate costs for the loss of F.A.O.No.83 of 2016 time and the inconvenience caused to him. But any such condition shall not be too onerous. 10. The principle laid down in **Peeves Enterprises [2015 (3) KHC 981]** was reiterated in **Shivananda M. v. M. Susheela [2021 (5) KHC 357]** . It was held that ‘sufficient cause’ for nonappearance 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 the non-appearance of the defendant on the date fixed for hearing when _ex parte_ proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where a defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide 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. 11. In view of the law laid down in the decisions referred to supra, when the application under Order IX, Rule 13 of the Code of Civil Procedure is one filed within the period of limitation, the discretion has to be exercised in favour of the defendant, when no negligence or inaction is imputable to the defendant and his 9 F.A.O.No.83 of 2016 absence was not mala fide or intentional. For the absence of the defendant, the plaintiff can be compensated by adequate costs and the _lis_ decided on merits. 12. Considering the facts and circumstances of the case, in the light of the law laid down in the decisions referred to supra, we find that the order dated 18.02.2016 of the Sub Court, Ottapalam in I.A.No.2528 of 2015 in O.S.No.190 of 2012 requires interference; however on payment of costs, since the appellantdefendant was set _ex parte_ on an earlier occasion as well. 13. In the result, this appeal is allowed and the impugned order dated 18.02.2016 of the Sub Court, Ottapalam in I.A.No.2528 of 2015 in O.S.No.190 of 2012 is set aside on payment of a cost of Rs.5,000/- (Rupees Five thousand only) payable by the appellant-defendant to the respondent-plaintiff, within two weeks from the date of receipt of a certified copy of this judgment. On such payment being made, the impugned order dated 18.02.2016 of the Sub Court, Ottapalam in I.A.No.2528 of 2015 in O.S.No.190 of 2012 will stand set aside and consequently, the _ex parte_ decree passed in O.S.No.190 of 2012 will stand set aside. Thereafter, the Sub Court shall proceed with the suit and dispose of the same, as expeditiously as possible, at any rate, within a period of four months, since the suit is of the year 2012. 10 F.A.O.No.83 of 2016 Both parties shall appear before the Sub Court, Ottapalam, ## **on 04.07.2023** . Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** AV/17/6