Pocker v. Muhammed @ Kunhappa Kurikkal and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 19TH DAY OF SEPTEMBER 2017/28TH BHADRA, 1939** **OP(C).No. 869 of 2017 (O) --------------------------** **IA NOS.552/2015 AND 919/2017 IN OS 14/2002 ON THE FILE OF MUNSIFF'S COURT, PERINTHALMANNA** **PETITIONER(S):/PETITIONER/1ST DEFENDANT -------------** **POCKER, S/O. KALAKKAL MOIDEENKUTTY, AGED 69 YEARS, KALAKKAL HOUSE, EDAPPATTA AMSOM, DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT.** **BY ADV. SRI.U.K.DEVIDAS** **RESPONDENT(S):** **--------------** **1. MUHAMMED @ KUNHAPPA KURIKKAL,** - **CHELENGARA, IRINGATTIRI, KARUVARAKKUNDU AMSOM, CHERUMBU DESOM, NILAMBUR TALUK, PIN – 676 523.** **2. MUHAMMED @ KUNHIPPU,** - **CHELENGARA, IRINGATTIRI, KARUVARAKKUNDU AMSOM, CHERUMBU DESOM, NILAMBUR TALUK, PIN – 676 523.** **3. MUHAMMEDALI,** - **CHELENGARA, IRINGATTIRI, KARUVARAKKUNDU AMSOM, CHERUMBU DESOM, NILAMBUR TALUK, PIN – 676 523.** **4. ABDUSALAM,** - **CHELENGARA, IRINGATTIRI, KARUVARAKKUNDU AMSOM, CHERUMBU DESOM, NILAMBUR TALUK, PIN – 676 523.** **5. ABDUL NAZAR,** - **CHELENGARA, IRINGATTIRI, KARUVARAKKUNDU AMSOM, CHERUMBU DESOM, NILAMBUR TALUK, PIN – 676 523.** **6. PATHUMMA, W/O. MOIDUTTY @ CHERIYAPPA KURIKKAL, CHELENGARA, IRINGATTIRI, KARUVARAKKUNDU AMSOM, CHERUMBU DESOM, NILAMBUR TALUK, PIN – 676 523.** **R1, R2, R4 & R6 BY ADV. SRI.P.R.VENKETESH ADV. SRI.G.KEERTHIVAS** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19-092017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP(C).No. 869 of 2017 (O) --------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **P1 COPY OF THE JUDGMENT DATED 24/03/2016 IN O.S 14/2002 ON THE FILES OF THE MUNSIFF COUT, PERINTHALMANNA** **P2 COPY OF THE AFFIDAVIT IN THE I.A 552/2015 IN O.S 14/2002 ON THE FILES OF THE MUNSIFF COURT, PERINTHALMANNA** **P3 COPY OF THE I.A 191/2017 IN O.S 14/2002 ON THE FILES OF THE MUNSIFF COURT, PERINTHALMANNA** **P4 COPY OF THE ORDER DATED 23/02/2017 IN I.A 552/2015 IN O.S 14/2002 ON THE FILES OF THE MUNSIFF COURT, PERINTHALMANNA** **P5 COPY OF THE ORDER DATED 23/02/2017 IN I.A 191/2017 IN O.S 14/2002 ON THE FILES OF THE MUNSIFF COURT, PERINTHALMANNA** **P6 COPY OF THE E.P 54/2015 IN OS. 14/2002 ON THE FILES OF THE MUNSIFF COURT, PERINTHALMANNA** **P7 COPY OF THE COUNTER STATEMENT IN E.P 54/2015 IN O.S 14/2002 ON THE FILES OF THE MUNSIFF COURT, PERINTHALMANNA** **P8 COPY OF THE ORDER DATED 23/02/2017 IN E.P 54/2015 IN O.S 14/2002 ON THE FILES OF THE MUNSIFF COURT, PERINTHALMANNA** **P9 COPY OF THE E.A 32/2017 IN E.P 54/2015 IN O.S 14/2002 ON THE FILES OF THE MUNSIFF COURT, PERINTHALMANNA** **RESPONDENT(S)' EXHIBITS** **-----------------------** **NIL** **//TRUE COPY//** **PA TO JUDGE.** jg ## **ANIL K. NARENDRAN, J.** **.................................................................... OP(C) No.869 of 2017 .................................................................... Dated this the 19[th] day of September, 2017.** ## **J U D G M E N T** The petitioner, who is the first defendant in O.S.No.14/2002 on the file of Munsiff's Court, Perinthalmanna, is before this Court in this Original Petition seeking an order to set aside Exts.P4 and P5 orders dated 23.2.2017 passed by the said court in I.A.Nos.552/2015 and 919/2017 in that suit. O.S.No.14/2002 is one for recovery of possession. 2. On 9.3.2017, this Court issued urgent notice before admission to the respondents by speed post and granted interim stay of operation of Ext.P8 order, whereby the Amin was directed to effect delivery with the assistance of Surveyor, and all further proceedings in E.P.No.54/2015 in O.S.No.14/2002 on the file of Munsiff's Court, Perinthalmanna. 3. I have heard the learned counsel for the petitioner/first defendant and also the learned counsel for the respondents/plaintiffs. 4. The suit filed by the respondents/plaintiffs is one for recovery of possession. It was listed for trial on 3.3.2015. On that date, the petitioner/first defendant, who is stated to be OPC869/17 -2- contesting the case on behalf of other defendants as well, could not appear in court. The counsel for the defendants reported no instructions. Accordingly, the defendants were set _ex parte_ . Thereafter, the suit was decreed ex parte by Ext.P1 judgment dated 24.3.2015. 5. In order to set aside the ex parte decree, the defendants filed I.A.No.552/2015. Later, I.A.No.191/2017 was filed seeking an order to appoint an Advocate Commissioner, in order to record the oral evidence of the petitioner/first defendant in I.A.No.552/2015, since he is undergoing treatment for cancer. By Exts.P4 and P5 orders dated 23.2.2017 the court below dismissed both interlocutory applications, which are under challenge in this Original Petition filed under Article 227 of the Constitution of India. 6. As discernible from Ext.P4 order, the defendants were set ex parte on 3.3.2015 and thereafter, the suit was decreed ex parte on 24.3.2015. In order to set aside the ex parte decree the defendants filed I.A.No.552 of 2015, within the prescribed time limit, which was supported by an affidavit dated 1.4.2015 sworn OPC869/17 -3- to by the petitioner/first defendant, wherein he has stated that he could not appear in court on 3.3.2015 as he was laid up and that, he is conducting the case on behalf of other defendants as well. During the pendency of I.A.No.552 of 2015, the petitioner/first defendant filed I.A.No.191/2017 seeking an order to appoint an Advocate Commissioner, in order to record his oral evidence, since he is undergoing treatment for cancer. 7. As noticed by the court below, twice the defendants were set ex parte and the suit was decreed ex parte in the year 2003 and 2011 respectively. The interlocutory applications filed for setting aside those _ex parte_ decrees were allowed. Therefore, the present application is the third application filed for setting aside the ex parte decree. 8. In **G.P. Srivastava v. R.K. Raizada [(2000) 3 SCC 54]** the Apex Court held that, the word 'was prevented by any sufficient cause from appearing' occurring in Order IX, Rule 13 of the Code of Civil Procedure, 1908 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 OPC869/17 -4- 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. 9. In **G.P. Srivastava's case (supra)** , 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. OPC869/17 -5- ## 10. In **M/s. Peeves Enterprises v. Muhammed Ashraf** **(2015 (3) KHC 981)** , relying on the law laid down by the Apex Court in **G.P. Srivastava's case (supra)** , a Division Bench of this Court held that, on an application filed under Order IX, Rule 13 of the Code of Civil Procedure, 1908, 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 onerous. 11. In the instant case, though the defendants filed I.A.No.552 of 2015 within the prescribed time limit, a reading of the affidavit in support of the said application would show that, the said affidavit has been drafted in a casual manner harbouring the notion that the courts are required to set aside ex parte decree, based on such an application filed within the prescribed OPC869/17 -6- time limit, on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. 12. Referring to the affidavit accompanying to I.A.No.191/2017, an application filed seeking an order to appoint an Advocate Commissioner, in order to record the oral evidence of the petitioner/first defendant in I.A.No.552 of 2015, the learned counsel for the petitioner/first defendant would submit that petitioner/first defendant is undergoing treatment for cancer. However, as rightly pointed out by the learned counsel for the respondents/plaintiffs, no documents were produced before the court below in order to prove the said fact. 13. Considering the totality of the facts and circumstances of the case and also the assertion made as above by the learned counsel for the petitioner/first defendant, I deem it appropriate to set aside Exts.P4 and P5 orders, on payment of a cost of **Rs.5,000/-** payable to the respondent/plaintiffs, so as to afford the petitioner/first defendant an opportunity to make out sufficient cause for setting aside the ex parte decree, by adducing cogent and convincing evidence to show that his absence before OPC869/17 -7- the court below was not mala fide or intentional and that, there was no negligence or inaction on his part for such absence. It will be open to the petitioner/first defendant to produce materials before the court below, including medical records, in support of his case for setting aside the ex parte decree and also for appointing an Advocate Commissioner, in order to record his oral evidence in I.A.No.552 of 2015. 14. In the result, this Original Petition is disposed of by setting aside Exts.P4 and P5 orders dated 23.2.2017 of the Munsiff's Court, Perinthalmanna in I.A.Nos.552/2015 and 919/2017 in O.S.No.14/2002, on payment of a cost of **Rs.5,000/-** payable to the respondent/plaintiffs, which the petitioner/first defendant shall deposit before the said court within a period of **three weeks** from the date of this judgment. 15. On such deposit being made, the court below shall reconsider I.A.Nos.552/2015 and 919/2017 and pass appropriate orders thereon, as directed above, as expeditiously as possible, at any rate within a period of three months from the date of production of a certified copy of this judgment. Till such time, the OPC869/17 -8- interim order granted by this Court on 9.3.2017, staying the operation of Ext.P8 order, whereby the Amin was directed to effect delivery with the assistance of Surveyor, and all further proceedings in E.P.No.54/2015 in O.S.No.14/2002 shall continue to be in force. In case the petitioner/first plaintiff fails to deposit the cost of Rs.5,000/-, within the time limit stipulated as above, Exts.P4 and P5 orders will stand affirmed. In which event, it will be open to the execution court to proceed further with E.P.No.54/2015 and also Ext.P8 order. ## **(ANIL K. NARENDRAN, JUDGE)** jg/