NANNAATT MUHAMMEDKUTTY v. KIZHAKKEPARAMBIL GOPI and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 19TH DAY OF SEPTEMBER 2017/28TH BHADRA, 1939** **FAO.No. 9 of 2015 ()** **---------------------** **AGAINST ORDER DATED 10.10.2014 IN I.A.NO.3244/2013 IN O.S.NO.176/2007 ON THE FILE OF THE SUB JUDGE, TIRUR.** **APPELLANT/PLAINTIFF:-** **-----------------------** **NANNAATT MUHAMMEDKUTTY, AGED 55 YEARS S/O.KUNHIMARAKKAR, RESIDING AT OMACHAPUZHAMSOM, KARINGAPPARADESOM, TIRUR TALUK, MALAPPURAM DISTRICT.** **BY ADVS.SRI.J.R.PREM NAVAZ SRI.RAHUL VENUGOPAL SRI.SHEEJISH P.T.** ## **RESPONDENTS/DEFENDANTS:-:** **---------------------------** ## **1. KIZHAKKEPARAMBIL GOPI,** - **S/O.MADHAVAN, RESIDING AT NEDUVAAMSOM, DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT.** **2. PICHUMVEETTIL MUHAMMED,** - **S/O.BEERVUNNMI, VLIMUKKUAMSOM, DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT.** - ***2 *CAUSE TITLE AMENDED** **3. PEECHAMVEETTIL AMINA, W/O LATE PEECHAMVEETTIL MUHAMMED, VLIMUKKU AMSOM DESOM, TIRURNGADI TALUK 670101** **4. PEECHAMVEETTIL SHAMSEER, S/O LATE PEECHAMVEETTIL MUHAMMED, VLIMUKKU AMSOM DESOM, TIRURNGADI TALUK 670101** - ***1 5. PEECHAMVEETTIL SHEREEF, D/O LATE PEECHAMVEETTIL MUHAMMED, VLIMUKKU AMSOM DESOM, TIRURNGADI TALUK 670101** - ***1 6. PEECHAMVEETTIL SAJIDHA, LATE PEECHAMVEETTIL** - **MUHAMMED, VLIMUKKU AMSOM DESOM, TIRURNGADI TALUK 670101** - ***1 7. PEECHAMVEETTIL SAFEEDA, LATE PEECHAMVEETTIL MUHAMMED, VLIMUKKU AMSOM DESOM, TIRURNGADI TALUK 670101** ***1 THE NAME OF RESPONDENTS 5 O 7 ARE CHANGED AS SHAMEER, SAREEDHA AND SAMEERA RESPECTIVELY VIDE ORDER DATED 27/10/16 IN I.A.1083/16** ***2 CAUSE TITLE AMENDED AS ABOVE VIDE JUDGMENT DATED 19/9/17 IN I.A. 1159/15 IN FAO 9/15** **R1 BY ADV. SRI.K.P.SUDHEER R1 BY ADV. SRI.ARUN MATHEW VADAKKAN** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 19-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.N. RAVINDRAN & DEVAN RAMACHANDRAN, JJ** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - C.M.Appln.No.545 of 2015 in I.A.No.1159 of 2015 & I.A.Nos.1159 & 1160 of 2015 in F.A.O No. 9 of 2015 & F.A.O.No.9 of 2015 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19[th] day of September, 2017 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** ## _**P.N. RAVINDRAN, J.**_ The appellant is the plaintiff in O.S.No.176 of 2007 on the file of the Court of the Subordinate Judge of Tirur. The respondents are the defendants therein. The appellant had in O.S.No.176 of 2007 prayed for a decree allowing him to realise from the defendants and their assets the sum of Rs.3,60,000/- with interest at 8% per annum from the date of suit till realisation. 2. He had in the plaint averred that the defendants had agreed to sell their business to him for a consideration of Rs.2,00,000/- and the said sum was paid on 29.11.2006. He had also stated that for the purpose of purchasing goods for the said business, the defendants had also collected from him the sum of Rs.1,00,000/- on 1.12.2006 and an agreement was entered into on that day as well. It is stated that thereafter, the weighing machine, the licence and the telephone connection were transferred to his name. He had further averred that though the agreement was F.A.O.No.9 of 2015 -2- entered into and the sum of Rs.3,50,000/- was paid the defendants did not surrender the business and that later, the first defendant has in his capacity as the Managing Partner of the business run by him had received the sum of Rs.10,000/- from the plaintiff on 26.09.2004. 3. After the defendants were served, the plaintiff filed an application to prosecute the suit as an indigent person. That application was dismissed by order passed on 30.09.2009 and the plaintiff was granted time till 15.10.2009 to pay the balance court fee. The defendants had upon receipt of summons entered appearance and filed a written statement resisting the suit. The defendants had in their written statement denied having entered into any agreement with the plaintiff. The plaintiff thereupon filed I.A.No.385 of 2010 to send the disputed document to the Forensic Science Laboratory. Since the report received from the Forensic Science Laboratory was adverse to him, he filed I.A.No.1433 of 2011 with a prayer to send the disputed document to the hand writing expert. That application was heard and dismissed. The plaintiff's counsel thereupon reported no instructions and consequently the suit was dismissed for default. 4. The plaintiff thereupon filed I.A.No.1957 of 2011 under Order IX Rule 9 of the Code of Civil Procedure to have the suit restored to file. That application was heard and allowed. The plaintiff thereafter filed I.A.No.671 of 2012 to send the disputed F.A.O.No.9 of 2015 -3- document to the handwriting expert. That application was also dismissed and the case was again listed for trial. At that stage also, learned counsel for the plaintiff reported no instructions and the suit was dismissed for default. He thereupon filed I.A.No.588 of 2013 to have the suit restored to file. That application was heard and allowed and the suit was restored to file. Thereafter it was again listed for trial on 17.10.2013. The plaintiff did not appear on that day as well. Consequently, the suit was again dismissed for default by order passed on 17.10.2013. 5. He thereupon filed I.A.No.3244 of 2013 under Order IX Rule 9 of the Code of Civil Procedure with a prayer that the order dismissing the suit for default may be set aside and the suit restored to file. He had in the affidavit filed in support of the application averred that he was laid up due to acute bronchitis on 17.10.2013 and was therefore not in a position to travel or give instructions to his counsel. He contended that his non appearance is not wilful or negligent. The defendants filed a counter affidavit opposing the application. Referring to the earlier two instances when the suit was dismissed for default they contended that the attempt of the plaintiff is to delay the trial of the suit. They contended that very same doctor had issued the medical certificates in the earlier occasions and therefore, the medical certificate cannot be relied on. 6. Before the court below, the plaintiff examined himself as F.A.O.No.9 of 2015 -4- PW1. The medical certificate produced by him in support of his case that he was laid up due to acute bronchitis on 17.10.2013 was marked as Ext.A1. After considering the rival contentions and the evidence on record, the court below held that as the doctor who issued Ext.A1 has not been examined, it cannot be acted upon. The court below thereafter referred to the previous conduct of the plaintiff and held that he has been consistently at default in prosecuting the suit. The application under Order IX Rule 9 of the Code of Civil Procedure was accordingly dismissed by order passed on 10.10.2014. The plaintiff has, aggrieved thereby, filed this appeal. 7. The notice issued to the second respondent was returned unserved with the endorsement expired. The appellant thereupon filed I.A.No.1159 of 2015 to implead the legal heirs of the deceased second respondent as additional respondents 3 to 7. In the affidavit filed in support of the said application, he has stated that though the second respondent passed away on 14.11.2014, he was unaware of the death of the second respondent. He has also averred that on the death of the second respondent, the right to sue survives on his legal heirs who are arrayed as respondents 3 to 7. The appellant has also filed I.A.No.1160 of 2015 to set aside the abatement consequent on the death of the second respondent and C.M.Appln.No.545 of 2015 to condone the delay of 173 days in filing the application to set aside abatement. It is evident from the F.A.O.No.9 of 2015 -5- averments in the affidavit filed in support of I.A.No.1159 of 2015 that the second respondent/second defendant passed away on 14.11.2014 before the instant appeal was presented but after the impugned order was passed. This court has in **Devaki Amma v. Kadungunni Nair** 1980 KLT 201 held that where an appeal is filed with a dead person on the party array, the proper remedy is not to file an application for impleading, but to file an application to amend the cause title accompanied by an application to condone the delay in filing such an application. The view taken by this court is that an appeal filed with a dead person on the party array cannot be said to be an appeal properly instituted. The same is the view taken by the Honourable the Supreme Court of India in **Gurcharan Singh v. Surjit Singh** 2012 (4) KLT 572 (SC). 8. Though this should have entailed a dismissal of the said applications, having regard to the fact that the first respondent and the additional respondents have been served and they have not so far filed objections, we deem it appropriate to convert the application for impleading, namely, I.A.No.1159 of 2015 as an application to amend the cause title. Having regard to the averment therein that the appellant was unaware of the death of the second respondent, which averment has not so far been denied by the respondents, we allow the said application. For the very same reason we allow C.M.Appln.No.545 of 2015 by treating it as an application to condone the delay in filing I.A.No.1159 of 2015. F.A.O.No.9 of 2015 -6- In the view that we have taken, no orders are called for on I.A.No.1160 of 2015 and it is closed as unnecessary. 9. We heard Sri.Sheejish P.T, learned counsel appearing for the appellant and Sri. Arun Mathew Vadakkan, learned counsel appearing for the first respondent. The court below has dismissed the application filed by the appellant under Order IX Rule 9 of the Code of Civil Procedure mainly for the reason that the suit was dismissed for default on two earlier occasions. The Apex Court has in **G.P. Srivastava v. R.K. Raizada & Others** AIR 2000 SC 1221 held with reference to an application filed under Order IX Rule 13 of the Code of Civil Procedure that where the earlier non appearance was condoned and the ex-parre decree was set aside, the fact that the defendant had been once set ex-parte cannot be relied on when considering the application filed by him on a later occasion to have the ex-parte decree subsequently passed, set aside. It was held that if sufficient cause is made out for 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. The Apex Court held that in a case where the defendant approaches the court immediately and within the time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. It was held that for the absence of a party in the case, the other side can be compensated by adequate F.A.O.No.9 of 2015 -7- costs and the lis decided on the merits. 10. The same principle, in our opinion, applies to the case on hand. But we however deem it appropriate to restore the suit to file only subject to condition that in the event of the appellant succeeding in the suit, he will not be entitled to interest on the amount decreed, during the period from 17.10.2013 till today and subject to the further condition that he shall pay the sum of Rs.5,000/- to the first defendant and a like sum of Rs.5,000/- to the legal heirs of the defendants as costs, within two weeks from today. We accordingly allow the appeal, set aside the impugned order and restore O.S.No.176 of 2007 to file, subject to the condition that the appellant shall within two weeks from today deposit in the court below for payment to the first defendant, the sum of Rs.5,000/- as costs and a like sum for payment as costs to the legal representatives of the deceased second defendant. The appellant and the parties to this appeal shall appear through counsel in the court below on 16.10.2017. The court below shall on that day, if costs has been deposited, take back the suit to file and try and dispose of the suit on merits. The appellant shall on 16.10.2017 also file application to implead the legal heirs of the deceased second defendant. Having regard to the fact that the suit was instituted more than a decade back, we also deem it appropriate to direct the court below to try and dispose of the suit before the civil courts close for F.A.O.No.9 of 2015 -8- the Christmas holidays on 21.12.2017. Needless to say the appellant will not be entitled to interest on the amount, if any, decreed in his favour, from 17.10.2013 till today. Sd/- **P.N. RAVINDRAN, JUDGE** sd/- **DEVAN RAMACHANDRAN, JUDGE** kp