Nazim A.S. v. Sujith @ Suni and Abdul Rasheed

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN`** ## **`&`** ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` FRIDAY, THE 16[TH] DAY OF JUNE 2023 / 26TH JYAISHTA, 1945 ``` ``` FAO NO. 176 OF 2016 ``` ``` AGAINST THE ORDER DATED 21.03.2016 IN I.A.NO.3587 OF 2014 IN ``` ``` O.S.NO.1282 OF 2008 OF PRINCIPAL SUB COURT, TRIVANDRUM ``` ``` APPELLANTS/1[ST] PETITIONER/1[ST] DEFENDANT: ``` ``` NAZIM A.S., S/O.ABDUL RASHEED, CHIRAYIL VEEDU, KALLUVETTI, MANJAMALA P O, THONNAKKAL, THIRUVANANTHAPURAM. ``` ``` BY ADVS.SRI.V.SURESH SRI.G.RAJEEV SRI.G.SUDHEER ``` ## **`RESPONDENTS/COUNTER-PETITIONER & 2[ND] PETITIONER/PLANTIFF & 2[ND]`** ``` DEFENDANT: ``` - **`1 SUJITH @ SUNI D/O.KHADIJA BEEVI, TC 14/1350, BAKERY JUNCTION, THYCAUD VILLAGE, THIRUVANANTHAPURAM-695001.`** - **`2 ABDUL RASHEED`** ``` CHIRAYIL VEEDU, KALLUVETTI, MANJAMALA P O, THONNAKKAL, THIRUVANANTHAPURAM-695001. ``` ## **`THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD`** ``` ON 16.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 FAO No.176 of 2016 ## **JUDGMENT** ## Anil K. Narendran, J. The appellant is the 1[st] defendant in O.S.No.1282 of 2008 on the file of the Principal Sub Court, Thiruvananthapuram, which was one filed by the 1[st] respondent herein-plaintiff seeking a decree for realisation of Rs.6,50,000/- together with interest at the rate of 12% per annum, on the strength of 5 cheques alleged to have been issued by the 1[st] defendant. After recording the evidence of PW1 and marking Exts.A1 to A19 on her side the suit was listed for defendants’ evidence on 20.08.2014. The 1[st] defendant filed I.A.No.2916 of 2014 for removing the case from the list, since the genuineness of the cheques have to be ascertained by obtaining FSL report. That application was dismissed on 20.08.2014 and thereafter the case was listed for hearing on 26.08.2014. According to the appellant-1[st] defendant after the dismissal of I.A.No.2916 of 2014, the Sub Court recorded in the proceedings sheet that “no list of witness filed by the defendant; the defendant absent; the defendant has not filed proof affidavit; therefore, defendants’ evidence closed”. Thereafter, the matter was listed for hearing on 26.08.2014. On that day, the Sub Court heard only the counsel for the plaintiff. The counsel for the defendants did not participate in the hearing or made any submissions. Thereafter, the Sub Court 3 FAO No.176 of 2016 delivered its judgment on 29.08.2014. The 1[st] defendant filed I.A.No.3587 of 2014 invoking the provisions under Order IX Rule 13 of the Code of Civil Procedure, 1908 seeking an order to set aside the _ex parte_ decree dated 29.08.2014 in O.S.No.1282 of 2008. The 1[st] respondent-plaintiff filed objection, contending that the decree in O.S.No.1282 of 2008 is not an _ex parte_ decree, which cannot be set aside in an application under Order IX Rule 13 of the Code. After considering the rival contentions, the Sub Court dismissed I.A.No.3587 of 2014 on the ground that the decree passed against the defendants is not an _ex parte_ decree, which cannot be set aside in an application filed under Order IX Rule 13 of the Code. Challenging the said order dated 21.03.2016 of the Principal Sub Court, Thiruvananthapuram in I.A.No.3587 of 2014 in O.S.No.1282 of 2008, the appellant-1[st] defendant is before this Court in this appeal invoking the provisions under Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908. 2. On 28.07.2016, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondents. 3. Heard the learned counsel for the appellant-1[st] defendant. Despite service of notice, none appears for the 1[st] respondent-plaintiff and the 2[nd] respondent-2[nd] defendant. 4 FAO No.176 of 2016 4. The learned counsel for the appellant-1[st] defendant would contend that the reasoning of the court below that the decree dated 29.08.2014 in O.S.No.1282 of 2008 is not an _ex parte_ decree and as such an application under Order IX Rule 13 of the Code is not maintainable is _per se_ arbitrary and illegal, which warrants interference in this appeal. 5. We have perused a copy of the judgment dated 29.08.2014 of the Principal Sub Court, Thiruvananthapuram in O.S.No.1282 of 2008. Paragraph 8 of the judgment reads thus; “8. Evidence in this case consists of the oral testimony of PW1 and Exts.A1 to A19 on the side of the plaintiff. No oral evidence is adduced on the side of the defendants. But Ext.B1 is marked. Heard.” 6. The specific stand taken by the appellant-1[st] defendant is that on 20.08.2014, after the dismissal of I.A.No.2916 of 2014, the Sub Court closed the defendants’ evidence on the ground that the defendant was absent and no list of witness filed and the matter was listed for hearing on 26.08.2014. On that day the Sub Court heard only the counsel for the 1[st] respondent-plaintiff, as the learned counsel for the defendants did not participate in the hearing or made any submissions. 7. The relative scope and applicability of the provisions under Order IX Rule 6 and Order XVII Rules 2 and 3 of the Code of 5 FAO No.176 of 2016 Civil Procedure were considered by the Apex Court in the context of an application under Order IX Rule 13 of the Code in **G.Ratna Raj** **(dead) by LRs v. Sri Muthukumarasamy Permanent Fund Ltd.** **[(2019) 11 SCC 301]** , in which the Apex Court relied on its earlier decision in **B.Janakiramaiah Chetti v. A.K.Parthasarathi [(2003) 5 SCC 641]** . 8. In **G.Ratna Raj (dead) by LRs [(2019) 11 SCC 301]** the Apex Court held that if the defendants had remained absent on the day referred to in Order XVII Rule 2 and the defendant had adduced the evidence either fully or substantially prior to the date on which he was proceeded _ex parte_ , the court could have invoked its powers under Explanation to Order XVII Rule 2 of the Code treating the defendants as ‘present’ on that day for passing appropriate orders in the suit. Paragraphs 20 to 28 of that decision read thus; ‘20. The scope of Order 17 Rule 2 and Order 17 Rule 3 of the Code came up for consideration before this Court in **B. Janakiramaiah Chetty v. A.K. Parthasarthi [(2003) 5 SCC 641]** wherein Arijit Pasayat, J., speaking for the Bench held in paras 7 to 10 as under: (SCC pp. 645-46) “7. In order to determine whether the remedy under Order 9 is lost or not what is necessary to be seen is whether in the first instance the Court had resorted to the Explanation of Rule 2. 6 FAO No.176 of 2016 8. The Explanation permits the court in its discretion to proceed with a case where substantial portion of evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned. As the provision itself shows, discretionary power given to the court is to be exercised in a given circumstance. For application of the provision, the court has to satisfy itself that: (a) substantial portion of the evidence of any party has been already recorded; (b) such party has failed to appear on any day; and (c) the day is one to which the hearing of the suit is adjourned. Rule 2 permits the court to adopt any of the modes provided in Order 9 or to make such order as he thinks fit when on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear. The Explanation is in the nature of an exception to the general power given under the rule, conferring discretion on the court to act under the specified circumstance i.e., where evidence or a substantial portion of evidence of any party has been already recorded and such party fails to appear on the date to which hearing of the suit has been adjourned. If such is the factual situation, the court may in its discretion deem as if such party was present. Under Order 9 Rule 3 the court may make an order directing that the suit be dismissed when neither party appears when the suit is called on for hearing. There are other provisions for dismissal of the suit contained in Rules 2, 6 and 8. We are primarily concerned with a situation covered by Rule 6. The crucial words in the Explanation are “proceed with the case”. Therefore, on the facts it has to be seen in each case as to whether the Explanation was applied by the court or not. 7 FAO No.176 of 2016 9. In Rule 2, the expression used is “make such order as it thinks fit”, as an alternative to adopting one of the modes directed in that behalf by Order 9. Under Order 17 Rule 3(b), the only course open to the court is to proceed under Rule 2, when a party is absent. Explanation thereto gives a discretion to the court to proceed under Rule 3 even if a party is absent. But such a course can be adopted only when the absentee party has already led evidence or a substantial part thereof. If the position is not so, the court has no option but to proceed as provided in Rule 2. Rules 2 and 3 operate in different and distinct sets of circumstances. Rule 2 applies when an adjournment has been generally granted and not for any special purpose. On the other hand, Rule 3 operates where the adjournment has been given for one of the purposes mentioned in the Rule. While Rule 2 speaks of disposal of the suit in one of the specified modes, Rule 3 empowers the court to decide the suit forthwith. The basic distinction between the two Rules, however, is that in the former, any party has failed to appear at the hearing, while in the latter the party though present has committed any one or more of the enumerated defaults. Combined effect of the Explanation to Rule 2 and Rule 3 is that a discretion has been conferred on the court. The power conferred is permissive and not mandatory. The Explanation is in the nature of a deeming provision, when under given circumstances, the absentee party is deemed to be present. 10. The crucial expression in the Explanation is ‘where the evidence or a substantial portion of the evidence of a party’. There is a positive purpose in this legislative expression. It obviously means that the evidence on record is sufficient to substantiate the 8 FAO No.176 of 2016 absentee party's stand and for disposal of the suit. The absentee party is deemed to be present for this obvious purpose. The court while acting under the Explanation may proceed with the case if that prima facie is the position. The court has to be satisfied on the facts of each case about this requisite aspect. It would be also imperative for the court to record its satisfaction in that perspective. It cannot be said that the requirement of substantial portion of the evidence or the evidence having been led for applying the Explanation is without any purpose. If the evidence on record is sufficient for disposal of the suit, there is no need for adjourning the suit or deferring the decision.” 21. Now when we examine the facts of the case at hand keeping in view the law laid down in **B. Janakiramaiah Chetty v. A.K. Parthasarthi [(2003) 5 SCC 641]** , we find that the plaintiff's evidence was recorded and his case was also closed. It is not in dispute that the defendants were placed ex parte on the date when the case was fixed for recording the defendants' evidence but the same was not recorded due to the defendants' absence on the said date. In other words, it was a case where the defendants did not lead any evidence. 22. In such a situation arising in the case, in our view, the case at hand would not fall under Explanation to Order 17 Rule 2 of the Code because in order to attract the Explanation, “such party” which has led evidence or has led substantial part of the evidence, if fails to appear on any day to which the hearing of the case is adjourned, the Court may treat “such party” as “present” on that day and is accordingly empowered to proceed in the suit. 23. In this case, the party, who was absent and was proceeded ex parte was the “defendants” and they had not 9 FAO No.176 of 2016 led any evidence whereas it was the plaintiff, who was present and had led his evidence. 24. In other words, if the plaintiff had remained absent and was found to have led evidence, the Court could have invoked its powers under Explanation to Order 17 Rule 2 of the Code treating the plaintiff as “present” for passing appropriate orders. Such is, however, not the case here. 25. Similarly, in converse situation, if the defendants had remained absent (as has happened in this case) on that date and if it would have noticed that they had adduced the evidence either fully or substantially prior to the date on which they were proceeded ex parte, the Court could have invoked its powers under Explanation to Order 17 Rule 2 of the Code treating the defendants as “present” on that day for passing appropriate orders in the suit. Such is, however, again not the case here. 26. We are, therefore, of the view that since the defendants were proceeded ex parte and were found not to have led any evidence in the suit, the Court could only proceed under Order 17 Rule 3(b) read with Order 17 Rule 2 of the Code for disposal of the suit by taking recourse to one of the modes directed in that behalf by Order 9 of the Code or could have made any other order as it thinks fit. 27. As mentioned above, the trial court did proceed to hear the suit ex parte by taking recourse to Order 9 Rule 6(a) in terms of Order 17 Rule 2 of the Code because on that day, the plaintiff was present when the suit was called on for hearing whereas the defendants were absent despite service of summons and accordingly the trial court passed the preliminary decree. Such decree, in our opinion, was an “ex parte decree” within the meaning of Order 9 Rule 6(a) read with Order 9 Rule 13 of the Code and, therefore, could be set 10 FAO No.176 of 2016 aside under Order 9 Rule 13 on making out a sufficient ground by the defendants. 28. In view of the foregoing discussion, we are of the view that the Division Bench was justified in allowing the applications filed by Defendant 1 under Order 9 Rule 13 of the Code and, in consequence, was justified in setting aside the preliminary decree dated 25.02.2003 passed O.S.No.131 of 1999 treating the said decree as “ex parte decree”.’ 9. In the instant case, the defendants remained absent on 26.08.2014 and they did not lead any evidence prior to that date. Therefore, the decree passed by the Principal Sub Court on 29.08.2014 is an _ex parte_ decree, which could be set aside in an application under Order IX Rule 13 of the Code, on making out a sufficient ground. 10. Order IX, Rule 13 of the Code of Civil Procedure provides for setting aside of _ex parte_ decree against defendant. As per subrule (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 11 FAO No.176 of 2016 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 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 12 FAO No.176 of 2016 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 [(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 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. 13. 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 13 FAO No.176 of 2016 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 time and the inconvenience caused to him. But any such condition shall not be too onerous. 14. 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 14 FAO No.176 of 2016 the absence of a party in the case the other side can be compensated by adequate costs and the _lis_ decided on merits. 15. In the instant case, the 1[st] defendant filed I.A.No.3587 of 2014, invoking the provisions under Order IX Rule 13 of the Code, within the period of limitation. When no negligence or inaction is imputable to the appellant-1[st] defendant and his absence cannot be said to be mala fide or intentional, in the application filed under Order IX, Rule 13 of the Code, which was one filed within the period of limitation, the discretion has to be exercised in favour of the defendant. In the result, this appeal is allowed by setting aside the impugned order dated 21.03.2016 of the Principal Sub Court, Thiruvananthapuram in I.A.No.3587 of 2014. Consequently, the _ex parte_ decree in O.S.No.1282 of 2008 is set aside and the suit is restored to file. The Principal Sub Court, Thiruvananthapuram is directed to proceed with that suit and dispose of the same, as expeditiously as possible, at any rate, within a period of four months, from the date of receipt of a certified copy of this judgment. ## Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** AV/20/6