P.V. Kunhamu v. The Tahsildar, Hosdurg; State of Kerala represented by District Collector; Secretary, Cheruvathur Grama Panchayath

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 27[TH] DAY OF JUNE 2023 / 6TH ASHADHA, 1945** **F.A.O.NO. 7 OF 2022** **AGAINST THE ORDER DATED 23.07.2021 IN R.P.I.A.NO.393 OF 2019 IN O.S.NO.51 OF 2010 OF THE SUB COURT, HOSDRUG** ## **APPELLANT/PETITIONER/PLAINTIFF:** **P.V.KUNHAMBU AGED 92 YEARS, S/O AMBU, RESIDING AT CHERUVATHUR, NEAR BUS STAND CHERUVATHUR, CHERUVATHUR VILLAGE, HOSDURG TALUK, P.O.CHERUVATHUR – 671 310.** **BY ADV A.ARUNKUMAR** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** - **1 THE TAHSILDAR, HOSDURG, KANHANGAD P.O., KASARAGOD – 671 315.** - **2 STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, VIDHYA NAGAR, KASARAGOD – 671 121.** - **3 THE SECRETARY CHERUVATHUR GRAMA PANCHAYATH, CHERUVATHUR P.O. KASARAGOD – 671 310.** **R1& R2 BY SRI T.K.SHAJAHAN - GOVERNMENT PLEADER R3 BY ADV M.SASINDRAN** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 27.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 F.A.O.No.7 of 2022 ## **JUDGMENT** ## P.G. Ajithkumar, J. The plaintiff in O.S.No.51 of 2010 on the files of the Sub Court, Hosdurg has filed this appeal invoking the provisions of Order XLIII, Rule 1(c) of the Code of Civil Procedure, 1908. He assails the order dated 23.07.2021 in R.P.I.A.No.393 of 2019, whereby his plea for restoration of O.S.No.51 of 2010, which was dismissed for default on 04.10.2019, was declined. 2. Heard the learned counsel appearing for the appellant and the learned Senior Government Pleader for respondent Nos.1 and 2. 3. The suit was filed by the appellant claiming damages for the illegal demolition of a portion of his building. The suit was included in the special list for trial and scheduled on 04.10.2019. The appellant did not turn up on that day. Hence, the suit was dismissed for default. 4. The appellant would contend that he had to undergo a surgery on spinal code on 02.07.2018. On account of that and heart disease, he was confined to bed from 03.10.2019. As a result of such difficulties, he could not appear before the court on 04.10.2019. He thus justified his 3 F.A.O.No.7 of 2022 non-appearance before the court on 04.10.2019 and accordingly he sought to restore the suit on file. 5. The respondents opposed the application by contending that on two occasions earlier, the suit was dismissed for default. The first time, the Sub Court allowed the application to restore the suit on file as per the order in I.A.No.264 of 2015 and the second time this Court allowed restoration of the suit as per the order in F.A.O.No.150 of 2016. It was on the third time, the suit was dismissed for the non-appearance of the appellant on 04.10.2019. The contention of the respondents is that repeated laches on the part of the appellant disentitled him to get the suit restored again was accepted by the court below. It was observed by relying on the decisions in **Dr.Buddhi Kota Subbarao v. K.Parasaran and others [AIR 1996 SC 2687]** that unless sufficient cause is shown by the defaulting party, the court cannot restore the suit as a matter of course. The learned Sub Judge opined that the conduct of the appellant was such that, his non-appearance before the court was provfed to be deliberate and therefore the suit was not liable to be restored on file. 4 F.A.O.No.7 of 2022 6. There cannot be any quarrel to the proposition that in an application for restoration of the suit to file, the consideration shall be whether there is sufficient cause for the non-appearance of the party before the court. The fact that the party failed to appear in court on prior occasions resulting in the dismissal of the suit, may not be a criteria to measure the sufficiency of the cause for his non-appearance on a subsequent date. The suit was dismissed on 04.10.2019 since the appellant failed to appear on that day. The question is whether there was sufficient reason for his non-appearance on 04.10.2019. 7. Order IX, Rule 9 of the Code provides that a 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 5 F.A.O.No.7 of 2022 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. 8. 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. 9. 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 6 F.A.O.No.7 of 2022 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 malafide 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. 10. In **M. Shivananda v. M. Susheela and others [2021 (5) KHC 357]** a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party held that, 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 7 F.A.O.No.7 of 2022 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. 11. 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 in which one among us [Anil K. Narendran, J] was a party 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 malafide 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. 8 F.A.O.No.7 of 2022 12. The appellant gave statement in the form of an affidavit before the court and produced Ext.A1, which is a medical certificate, which shows that as a result of the illness and treatment, the appellant was not able to appear before the court on 04.10.2019. Therefore, a lenient view is required to be taken in the matter. Viewed so, the impugned order dated 23.07.2021 requires interference. 13. Accordingly, we allow this appeal and the impugned order is set aside. R.P.I.A.No.393 of 2019 is allowed. The Sub Court, Hosdurg to restore O.S.No.51 of 2010 to file and proceed with it in accordance with law. Both sides are directed to appear before the Sub Court on 13.07.2023. Since the suit is of the year 2010, the Sub Court shall make every endeavour to dispose of the same as expeditiously as possible. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr