P.K. Abdul Rahim v. Ummerechindavide Abdul Rahim and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 15[TH] DAY OF NOVEMBER 2021 / 24TH KARTHIKA,** ## **1943** ## **FAO NO. 97 OF 2009** **AGAINST THE ORDER DATED 25.11.2008 IN I.A.NO.3155 OF 2008 IN OS NO.84 OF 2004 OF ADDITIONAL SUB COURT, THALASSERY,** ## **KANNUR** ## **APPELLANT:** **P.K.ABDUL RAHIM RESIDING AT BISMILLAH HOUSE, THIRUVANGAD AMSOM,, THIRUVANGAD DESOM. BY ADVS. SRI.H.B.SHENOY SRI.B.ASHOK SHENOY SRI.ABU MATHEW SMT.LAKSHMI B.SHENOY SRI.SOBHAN GEORGE SRI.THOMAS P.MAKIL** ## **RESPONDENTS:** - **1 UMMERECHINDAVIDE ABDUL RAHIM S/O.ABDUL KHADAR, `IFTHI GHAR', CHOMBALA,VADAKARA.** - **2 UMMERECHINDAVIDE KHALIF S/O.ABDUL KHADAR, `IFTHI GHAR', CHOMBALA,VADAKARA.** - **3 UMMERECHINDAVIDE HAROON, S/O.ABDUL KHADER,'IFTHI GHAR',CHOMBALA,VADAKARA.** - **4 UMMERECHINDAVIDE MIHAMOOD IFTHIAS S/O.ABDUL KHADAR,'IFTHI GHAR',CHOMBALA,VADAKARA.** - **5 PONNAMBETH ABDUL RAHIMANSO.AHAMMED 'FATHIMA VILLA,MANJAKKAL,P.O.MAHE.** - **6 PONNAMBETH KHALID SAHIR, S/O.ABOO 'SAITHU AYSHA NIVAS',PARIMADAM,NEW MAHE.** - **7 PONNAMBETH ABDU KHALID, S/O.ABOO 'SAITHU AYSHA NIVAS',PARIMADAM,NEW MAHE.** F.A.O.No.97 of 2009 2 - **8 PONNAMBETH AHAMMED RASSAL, S/O.ABOO 'SAITHU AYSHA NIVAS',PARIMADAM,NEW MAHE.** - **9 PONNAMBETH MUHAMMED EASSA, S/O.ABOO 'SAITHU AYSHA NIVAS',PARIMADAM,NEW MAHE.** - **10 PONNAMBETH SHITHNNISA, S/O.ABOO** - **'SAITHU AYSHA NIVAS',PARIMADAM,NEW MAHE.** - **11 V.M.ABOO, S/O.MOHAMMED** - **'SAITHU AYSHA NIVAS',PARIMADAM,NEW MAHE.** - **12 PONNAMBETH KASMI, S/O.ASSU 'RUKKIYA VILLA,KADARAM KUNNU P.O, KURICHIYIL,NEW MAHE.** - **13 PONNAMBETH MUHAMMED, S/O.ADAVI AHALIMA, NEAR MAHE POLICE STATION,P.O MAHE.** - **14 PONNAMBETH BEEVI,D/O.ADAVI, AHALIMA NEAR MAHE POLICE STATION,P.O MAHE.** - **15 PONNAMBETH KHADER, S/O.ADAVI** - **'AHALIMA', NEAR MAHE POLICE STATION,P.O MAHE.** - **16 PONNAMBETH AYISSAI, D/O.ADAVI `AHALIMA', NEAR MAHE POLICE STATION,P.O MAHE.** - **17 PONNAMBETH MARIYAM, D/O.ADAVI `MARIYAM MANZIL', AZHIYOOR-CHUMGAM, AZHIYOOR.** - **18 PONNAMBETH SUHRA, D/O.EBRAHIMKUTTY RAHMAN VILLA, MANJAKKAL, P.O.MAHE.** - **19 PONNAMBETH MOHAMMED BASHIR S/O.EBRAHIMKUTTY, `HIBA', MANJAKKAL, P.O.MAHE.** - **20 PONNAMBETH KADEEJA, S/O. EBRAHAMKUTTY RAHMAN VILLA, MANJAKKAL, P.O.MAHE.** - **21 PONNAMBETH KAMALUDDIN, S/O. IBRAHIMKUTTY RAHMAN VILLA, MANJAKKAL, P.O.MAHE.** - **22 KAKKOTTEMANOLI KAMALUDDIN S/O. KHALID KOYA, RAHMAN VILLA, MANJAKKAL,P.O.MAHE** - **23 KAKKOTTEMANOLI MUSTHAFA S/O. KHALID KOYA, MAHE HOUSE, PANICKER ROAD,, KOZHIKODE.** - **24 KAKKOTTEMANOLI IMBICHAYAN D/O. KHALID KOYA, MAHE HOUSE, PANICKER ROAD,, KOZHIKODE.** - **25 KAKKOTTEMANOLI PATHOOTTY, W/O. KHALID MANOLI HOUSE, MANJAKKAL, P.O.MAHE.** - **26 PARAMBATH KAMALUDDIN S/O. ABDUL KHADAR, MANOLIL HOUSE, MANJAKKAL, P.O.MAHE.** F.A.O.No.97 of 2009 3 - **27 PONNAMBETH ABOOBACKER** - **S/O. ABDUL KHADAR, `EFFAR', NEAR MAHE PALAM,, NEW MAHE.** - **28 PONNAMBETH ABDUL RAHMAN S/O. ABDUL KHADER, `EFFAR', NEAR MAHE PALAM,, NEW MAHE.** - **29 PONNAMBETH MOHAMMED HASHIM S/O. ABDUL KHADER, `EFFAR', NEAR MAHE PALAM,, NEW MAHE.** - **30 PARAMBETH RABIATH D/O. MOHAMMED FAKHRUDDIN, `EFFAR', NEAR MAHE PALAM, NEW MAHE.** - **31 PONNAMBETH AYISSABEEVI, D/O. ASSU** - **T.C.HOUSE, THIRUVANGAD, THALASSERY.** - **32 PONNAMBETH MOOSAKUTTY, S/O. ASSU T.C.HOUSE, THIRUVANGAD, THALASSERY.** - **33 PONNAMBETH KADEEJA, D/O. ASSU** - **T.C.HOUSE, THIRUVANGAD, THALASSERY.** - **34 PONNAMBETH AMINA, D/O. ASSU T.C.HOUSE, THIRUVANGAD, THALASSERY.** - **35 PONNAMBETH MOOSAKUTTY ALIAS MOOSAKUTTY AGED 3 YEARS S/O. MAMMU, MIHRA MANZIL, AZHIYOOR CHUNGAM,, P.O.AZHIYOOR.** - **36 PONNAMBETH UMMER, S/O. MAMMU MIHRA MANZIL, AZHIYOOR CHUNGAM, P.O.AZHIYOOR.** - **37 PONNAMBETH ABOOBACKER, S/O. MAMMU MIHRA MANZIL, AZHIYOOR CHUMGAM P.O., AZHIYOOR.** - **38 PONNAMBETH RAMLLETH, D/O. MAMMU MIHRAMANZIL, AZHIYOOR CHUNGAM P.O., AZHIYOOR.** - **39 PONNAMBETH KUBHIPATH, D/O. MAMMU `APSARA', AZHIYOOR CHUNGAM, P.O.AZHIYOOR.** - **40 PONNAMBETH MAMMED, S/O. MOOSA `SAMA', KODIYERI AMSOM, P.O.KURICHIYIL.** - **41 PONNAMBETH NAFEESA D/O.KUNHAMINA, `NAFEES', NEAR MAHE PALAM, NEW MAHE.** - **42 PONNAMBETH UKKAYA S/O.KUNHAMINA, `NAFEES', NEAR MAHE PALAM,NEW MAHE.** - **43 PONNAMBETH KUNHALIMA D/O.KUNHAMINA, `NAFEES', NEAR MAHE PALAM,NEW MAHE.** F.A.O.No.97 of 2009 4 - **44 PONNAMBETH RABI D/O.UKKAYYA, `NAFEES', NEAR MAHE PALAM,NEW MAHE.** - **45 PONNAMBETH ABDULLA ALIAS ABOOTY S/O. AHAMMED, `APNA GHAR', CHETTEMKUNNU,, PALISSERY, THALASSERY.** - **46 AMBALATHRAMMAL SAHIDA, D/O. KUTTIAMU AMBALATHARAMMAL HOUSE, KOTTAYAM AMSOM, KOTTAYAM, DESOM, KOTTAYMPOYIL.** - **47 AMBALATHARAMMAL SARINA, D/O. KUTTIAMU AMBALATHARAMMAL HOUSE, KOTTAYAM AMSOM,, KOTTAYAM DESOM, KOTTAYAMPOYIL.** - **48 PUTHIYAKKAMMAVEETTIL AYSSA, D/O. HASSAN KODIYERI AMSOM, AZHIKKAL DESOM, NEW MAHE.** - **49 PALLAYAKANDAVIDA SUHRA, D/O. ABOOTY PALLANKANDAVIDA HOUSE, THIRUVANGAD, THALASSERY.** - **50 PALLANKANDAVIDA SAFARA MEHNA, D/O.ABOOTY PALLANKANDAVIDA HOUSE, THIRUVANGAD, THALASSERY.** - **51 PUTHIYAPURAYIL NAFEESAVI, D/O. USMAN C.P.HOUSE, NEAR GOPALPET, THALASSERY.** - **52 PUTHIYAPURAYIL RAHMATH D/O. USMAN, C.P.HOUSE, NEAR GOPALPET, THALASSERY.** - **53 PUTHIYAPURAYIL JAMEELA D/O.USMAN, C.P.HOUSE, NEAR GOPALPET, THALASSERY.** - **54 PUTHIYAPURAYIL FATHIMA D/O.USMAN, C.P.HOUSE, NEAR GOPALPET, THALASSERY.** - **55 AREEKASTHANATH AYISSA D/O. UMMAYYA, AREEKASTHANATH HOUSE, NEAR TOWN HALL, CHIRAKKARA.** - **56 AREEKASTHANATH NASEER S/O. UMMAYYA, AREEKASTHANATH HOUSE, NEAR TOWN HALL, CHIRAKKARA.** - **57 AREEKASTHANATH MUSAMMIL S/O.KADEEJA, AREEKASTHANATH HOUSE, NEAR TOWN HALL,, CHIRAKKARA.** - **58 AREEKASTHANATH SHAREEFA S/O.KADEEJA, AREEKASTHANATH HOUSE, NEAR TOWN HALL,, CHIRAKKARA.** - **59 AREEKASTHANATH SABIRA S/O.KADEEJA, AREEKASTHANATH HOUSE, NEAR TOWN HALL,, CHIRAKKARA.** - **60 AREEKASTHANATH MANHA D/O.PATHUTTY, AREEKASTHANATH HOUSE, NEAR TOWN HALL, CHIRAKKARA.** F.A.O.No.97 of 2009 5 - **61 ZUBAIDA, W/O. PARAMBATH PUTHIYAPURYIL YOUSEFF, PARAMBATH PUTHIYAPURAIL AL ISSA,, P.O.PERINGADI - 673 312.** - **62 MISIRIYA, D/O. PARAMBATH PUTHIYAPURYIL YOUSEFF, PARAMBATH PUTHIYAPURAIL AL ISSA,, P.O.PERINGADI - 673 312.** - **63 SAJID, S/O. PARAMBATH PUTHIYAPURYIL YOUSEFF, PARAMBATH PUTHIYAPURAIL AL ISSA,, P.O.PERINGADI - 673 312.** - **64 ADIYALATH SUHARA, S/O. MOOSAKUTTY ADIYALATH HOUSE, CHOCKLI AMSOM, PERINGADI DESOM.** - **65 ADIYALATH LUBAINA, D/O. MOOSAKUTTY ADIYALATH HOUSE, CHOCKLI AMSOM, PERINGADI DESOM.** - **66 ADIYALATH SIMNA, D/O. MOOSAKUTTY ADIYALATH HOUSE, CHOCKLI AMSOM, PERINGADI DESOM.** - **67 EDAVANA PARAMBATH FATHIMA D/O. MOOSAKUTTY, ADIYALATH HOUSE, CHOCKLI AMSOM,, PERINGDAI DESOM.** - **68 EDAVANA PARAMBATH KADEEJA D/O. MOOSAKUTTY, ADIYALATH HOUSE, CHOCKLI AMSOM,, PERINGDAI DESOM. BY ADVS. SRI.R.SURENDRAN -R29 SRI.K.S.MADHUSOODANAN – R61 TO R63 SRI.K.VISWAN– R61 TO R63 SRI.T.V.JAYAKUMAR NAMBOODIRI– R61 TO R63 SRI.THUSHAR NIRMAL SARATHY– R61 TO R63 SRI.M.M.VINOD KUMAR– R61 TO R63 SMT.K.M.RAMYA– R61 TO R63** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 15.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** F.A.O.No.97 of 2009 6 ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellant is the plaintiff in O.S.No.84 of 2004 on the file of the Additional Sub Court, Thalassery, a suit filed against the defendants for recovery of money to the tune of Rs.8,80,000/- with future interest and costs from the defendants and by sale of plaint schedule property, due towards refund of advance consideration received by the defendants from plaintiff under agreement for sale in respect of plaint schedule property. 2. On 04.08.2007, when the suit was listed for trial, it was dismissed for default. The plaintiff filed I.A.No.3155 of 2007, an application under Order IX Rule 9 of the Code of Civil Procedure, 1908, seeking restoration of that suit. Defendants 61 to 63 alone opposed that interlocutory application by filing a counter statement. The appellant-plaintiff was examined as PW1 and Exts.A1 to A6 were marked. After considering the rival contentions, the court below dismissed that interlocutory application by the order dated 25.11.2008, for the reasons stated therein. Feeling aggrieved, the appellant-plaintiff is before this Court in this appeal, under Section 104 read with F.A.O.No.97 of 2009 7 Order XLIII Rule 1(c) of the Code of Civil Procedure, seeking an order to set aside the order dated 25.11.2008 in I.A.No.3155 of 2008 and to restore O.S.No.84 of 2004 to file. 3. On 21.05.2009, when this appeal came up for admission, this Court issued notice to the respondent. 4. Heard the learned counsel for the appellant-plaintiff and also the learned counsel for respondents 61 to 63. Despite service of notice, none appears for respondents 1 to 60 and 64 to 68. 5. The issue that arises for consideration in this appeal is as to whether any interference is warranted on the impugned order dated 25.11.2008 of the court below in I.A.No.3155 of 2008 in O.S.No.84 of 2004, whereby that application filed by the appellant-plaintiff under Order IX Rule 9 of the Code of Civil Procedure, stands rejected. 6. The learned counsel for the appellant would submit that I.A.No.3155 of 2008 is one filed by the appellant within the period of limitation. However, that application was rejected by the court below, without properly appreciating the contentions raised by the appellant. 7. Per contra, the learned counsel for respondents 61 F.A.O.No.97 of 2009 8 to 63 would contend that, though the said application is one filed within the period of limitation, the appellant has not shown sufficient cause for ordering restoration and it was in such circumstances that the court below rejected that application. 8. Order IX, Rule 9 of the Code provides that decree against plaintiff by default bars fresh suit. As per sub-rule (1) of Rule 9, where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the court - that there was sufficient cause for his non appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. As per sub-rule (2) of Rule 9, no order shall be made under this rule unless notice of the application has been served on the opposite party. 9. Order IX, Rule 13 of the Code provides for setting aside decree ex parte against defendant. As per sub-rule (1) of Rule 13, in any case in which a decree is passed _ex parte_ F.A.O.No.97 of 2009 9 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 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_ F.A.O.No.97 of 2009 10 _parte_ decree. 10. 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. 11. In **G.P. Srivastava** , 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 nonappearance of the defendant on the date fixed for hearing when _ex parte_ proceedings initiated against him, he cannot be F.A.O.No.97 of 2009 11 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. 12. In **Peeves Enterprises v. Muhammed Ashraf [2015 (3) KHC 981]** , relying on the law laid down by the Apex Court in **G.P. Srivastava** , 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 time and the inconvenience caused to him. But any such condition shall not be too F.A.O.No.97 of 2009 12 ## onerous. 13. Order IX, Rule 9 of the Code of Civil Procedure enables the court to set the dismissal aside, if the plaintiff - satisfies the court that there was sufficient cause for his non appearance when the suit was called on for hearing. On the other hand, Order IX, Rule 13 of the Code enables the court which passed a decree _ex parte_ to set it aside, if the defendant 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. Therefore, the principle laid down by the Apex Court in **G.P. Srivastava [(2000) 3 SCC 54]** , in the context of an application filed under Order IX, Rule 13 of the Code, apply with equal force in the consideration of an application filed under Order IX, Rule 9 of the Code. 14. In **Robin Thapa v. Rohit Dora [(2019) 7 SCC 359]** the Apex Court held that, ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that, as far as possible, adjudication be done on merits. F.A.O.No.97 of 2009 13 15. In the instant case, I.A.No.3155 of 2008 filed by the appellant under Order IX, Rule 9 of the Code of Civil Procedure, seeking an order to restore O.S.No.84 of 2004 is one filed within the period of limitation. During the course of arguments, on a query made by this Court, the learned counsel for respondents 61 to 63 would submit that, to his knowledge, the suit was dismissed for default for the first time on 04.08.2007. Since I.A.No.3155 of 2008 filed by the appellant is within the period of limitation, taking note of the law laid down in the decisions referred to supra, we find that the appellant has made out sufficient cause for an order to restore O.S.No.84 of 2004 to file, under Order IX, Rule 9 of the Code of Civil Procedure, on payment of a reasonable cost to respondents 61 to 63. 16. The learned counsel for the appellant would submit that since the suit is of the year 2004, a time bound disposal of the same is highly essential. The learned counsel on both sides would point out that the suit was dismissed for default when it was listed for trial. 17. In such circumstances, this appeal is allowed by setting aside the order dated 25.11.2008 of the Additional Sub F.A.O.No.97 of 2009 14 Court, Thalassery, in I.A.No.3155 of 2008 in O.S.No.84 of 2004, thereby allowing that interlocutory application, by restoring O.S.No.84 of 2004 to file, however, on payment of a cost of Rs.5,000/- payable to respondents 61 to 63, within a period of three weeks from the date of receipt of a certified copy of this order. Since the suit is of the year 2004, the Additional Sub Court, Thalassery, shall dispose of O.S.No.84 of 2004, as expeditiously as possible, at any rate, within a period of four months from the date of production of a certified copy of this judgment, if there is no legal impediment. Sd/- **ANIL K. NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** **yd**