R. Sudharsanan v. BINOY, Bindhu G., E.I. Abdul Jaleel, VIJAYAMMA, RADHA K.N., V.K. SASEENDRAN, SUDHAKARAN, SIVASANKARAMENON, JAYA, VIJAYAKUMAR, BANARJI

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 05TH DAY OF MARCH 2020 / 15TH PHALGUNA, 1941** ## **FAO.No.76 OF 2018** **AGAINST THE ORDER IN I.A.NO.234/2017 IN O.S.NO. 202/2010 DATED 28-07-2017 OF SUB COURT,KATTAPPANA** ## **APPELLANT/PETITIONER/PLAINTIFF:** **R.SUDHARSANAN AGED 63 YEARS, S/O.RAGHAVAN, PARAMPATHU HOUSE,NEDUMKANDAM KARA, KALKOONTHAL VILLAGE, UDUMBANCHOLA TALUK.** **BY ADVS. SRI.LIJI.J.VADAKEDOM SMT.REXY ELIZABETH THOMAS SRI.RAJEEV JYOTHISH GEORGE** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** **1 BINOY AGED ABOUT 47 YEARS, S/O.PAILY,THERALIL HOUSE, THOOKKUPALAM KARA,KARUNAPURAM VILLAGE, UNDUMBANCHOLA TALUK-685554.** **2 BINDHU G. BLOCK NO.1351, THANNIMOODU KARA,PAMPADUMPARA VILLAGE,UNDUMBANCHOLA TALUK-685554.** **3 E.I.ABDUL JALEEL S/O.IBRAHIM, AGED ABOUT 37 YEARS,EERACKAL HOUSE,PARATHODU VILLAGE, KAMPEMMETTU KARA,UDUMBANCHOLA TALUK-685554.** ## **4 VIJAYAMMA** **AGED ABOUT 55 YEARS, W/O.PARAMESWARAN,PUTHIYIDATHU HOUSE,SANTHANPARA VILLAGE, SANTHANPARA KARA,UDUMBANCHOLA TALUK-685554.** - **5 RADHA K.N.** **AGED ABOUT 43 YEARS,D/O.MADHAVAN, ILLICKAL HOUSE,PAMPADUMPARA KARA,PAMPADUMPARA VILLAGE,UNDUMBANCHOLA TALUK-685554.** - **6 V.K.SASEENDRAN AGED ABOUT 42 YEARS, S/O.KOCHUKUNJU,BLOCK NO.1351,** **FAO.No.76 OF 2018 2** **PARATHODU VILLAGE, NEDUMKANDAM KARA,UDUMBANCHOLA TALUK-685554.** - **7 SUDHAKARAN** **AADIPLACKAL HOUSE, AGED ABOUT 45 YEARS,PAMPADUMPARA KARA,PAMPADUMPARA VILLAGE,UNDUMBANCHOLA TALUK685554.** - **8 SIVASANKARAMENON** **AGED ABOUT 59 YEARS,S/O.T.RADHAKRISHNAN, HOUSE NO.45/31,MUNSIPPAL OFFICE STREET,CUMBUM, UTHAMAPALAYAM TALUK,THENI DISTRICT-685554.** - **9 JAYA** **AGED ABOUT 45 YEARS,W/O.VIJAYAKUMAR, PUTHENVEETTIL HOUSE,THANNIMOODU KARA, KOMBAYAR BHAGOM,PARATHODE VILLAGE, UDUMBANCHOLA TALUK-685554.** - **10 VIJAYAKUMAR** **AGED ABOUT 54 YEARS, S/O.KRISHNAN ACHARY,PUTHENVEETTIL HOUSE,THANNIMOODU KARA, KOMBAYAR BHAGOM,PARATHODE VILLAGE, UDUMBANCHOLA TALUK-685554.** - **11 BANARJI** **AGED ABOUT 39 YEARS,S/O.PARAMESWARAN,PUTHIYEDATHU HOUSE, SHANKAPPANPARA KARA,SANTHANPARA VILLAGE,UDUMBANCHOLA TALUK-685554.** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 02-03-2020, THE COURT ON 05-03-2020 DELIVERED THE FOLLOWING:** **FAO.No.76 OF 2018 3** ## **JUDGMENT** The plaintiff in O.S.No.202 of 2010 on the files of the Sub Court, Kattappana, is the appellant before this Court. 2. The appellant has impugned the order of the Trial Court in I.A.No.234 of 2017 in the afore mentioned suit, as per which, his application to restore the suit- earlier dismissed for default-under the provisions of order IX Rule 9 of the Code of Civil Procedure (CPC for short) has been rejected, finding that he has not shown sufficient cause. 3. The learned counsel for the appellant, Shri.Liji J.Vadakedom, submits that the sole reason why the Trial Court has rejected the application preferred by his client for restoring the suit is because it had earlier been dismissed and restored once and therefore, that his conduct can only be seen to be with the intention of delaying the trial of the suit. The learned counsel says that his client had no reason to delay the suit and that he being the plaintiff, it is to ## **FAO.No.76 OF 2018 4** his benefit that it is disposed of at the earliest. He says that unfortunately, however, his client was suffering from debilitating deceases, as is evident from Ext.A1 out patient record of the Taluk Hospital, Nedumkandom; and that it is only, therefore, that he was unable to appear before the Trial Court when the suit was listed for trial. He further asserts that since Ext.A1 had not been even objected to by the defendants in the suit, the Trial Court ought to have accepted it and to have restored the suit. 4. Even though notice from this Court has been validly served on the respondents herein, they have chosen not to be present in person or to be represented through counsel; thus constraining me to dispose of this appeal in their absence. 5. When I examine the impugned order and Ext.A1, a copy of which has been handed over by Shri.Liji J.Vadakedom across the Bar, it is clear that the sole reason impelled by the appellant in seeking the restoration of the ## **FAO.No.76 OF 2018 5** suit, under Order IX Rule 9 of the CPC, is that he was unable to be present before the Court on 01/02/2017, when the suit was listed for trial, on account of alleged indispossession. I notice that the Trial Court did not accept Ext.A1 to be a valid document merely because the appellant did not examine the Doctor who issued it and because it was found not to be a valid prescription for medicine, it containing neither details of the appellant's ailment or the dosage of the medicines. 6. I afraid that this view of the Trial Court cannot find favour with me because; for one, Ext.A1 was not objected to by the defendants and for the second, its validity has not been contested, in any manner - it having been issued by the Taluk Hospital, Nedumkandom. Therefore, that fact that there was no mention of the ailment of the appellant or the dosage of the medicines in it could not have led to an inference that Ext.A1 is a document unworthy of credence, particularly ## **FAO.No.76 OF 2018 6** when, as I have already said above, its validity was not assailed at all. Obviously, therefore, the fact that the appellant did not examine the Doctor who issued the same would also be of no relevance. 7. That said, the further reason in the impugned order that the suit had earlier been dismissed but restored and therefore, that the present attempt of the appellant is to further delay the suit cannot obtain the approval of this Court because, as has been declared by the Hon'ble Supreme Court in _**G.P.Srivastava v.**_ _**R.K.Raizada & Others**_ **[AIR 2000 SC 1221],** with reference to Order IX Rule 13 of the CPC, that once the exparte decree had already been set aside, the earlier decree cannot be taken as a reason to reject a subsequent application. A Division Bench of this Court, following this principle, had then declared in _**Nannaatt Muhammedkutty v. Kizhakkeparambil Gopi & Others (F.A.O.No.9 of 2015)**_ that this will apply to a case of dismissal of a suit for default also in the following lines: ## **FAO.No.76 OF 2018 7** “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 exparte 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.” 8. The conspectus of the above persuades me to the firm opinion that the Trial Court has erred in issuing the impugned Order and I, therefore, deem it appropriate to allow this appeal. ## Resultantly, this appeal will stand allowed; and consequentially, the impugned order of the Sub Court, Kattappana, in I.A.No.234 of 2017 in O.S.No.202 of 2010 will stand set aside and the said I.A. will stand allowed. Axiomatically, the suit will stand restored to file and the Trial Court will dispose of the same, after following due **FAO.No.76 OF 2018 8** procedure, as expeditiously as is possible. In the nature of the circumstances seen in this case, I make no order as to costs and thus direct the parties to suffer their respective costs. ## **Sd/-** ## **DEVAN RAMACHANDRAN** **JUDGE** **MC/6.3.2020**