Riyas K.H. v. Reena Sakeer and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN`** ## **`&`** ``` THE HONOURABLE MR. JUSTICE G. GIRISH ``` ``` WEDNESDAY, THE 20[TH] DAY OF MARCH 2024 / 30TH PHALGUNA, 1945 ``` ``` FAO NO.31 OF 2024 ``` ``` AGAINST THE ORDER DATED 18.12.2023 IN I.A.(RP)NO.6 OF 2023 ``` ``` IN OS NO.14 OF 2021 OF SUB COURT, KOCHI ``` ## **`APPELLANT/PETITONER/DEFENDANT:`** ``` RIYAS K.H., REPRESENTED BY POWER OF ATTORNEY HOLDER NEETHA RIYAS, AGED 40 YEARS ``` ``` S/O HAMEED KASIM, HOUSE NO. 1/25552-A3 (OLD NO 11/541 A-7), BEHIND MATHEW LAWRENCE BUNGLOW, K.J HERSHEL ROAD, FORT KOCHI - 682001, REPRESENTED BY POWER OF ATTORNEY HOLDER NEETHA RIYAS, W/O RIYAS K.H, RESIDING AT 21/1534, KADEEJA MANSIL, FORT 40 FEET ROAD, PALLURUTHY, ERNAKULAM, KERALA., PIN - 682006 ``` ``` BY ADVS.O.V.MANIPRASAD JOSE ANTONY HARIKRISHNAN P. ``` ## **`RESPONDENTS/COUNTER PETITIONERS/PLAINTIFFS:`** ``` 1 REENA SAKEER AGED 44 YEARS W/O SAKEER MUHAMMED NERIMBODATHU HOUSE, ASHOKA ROAD, KALOOR P.O, ERNAKULAM., PIN - 682017 ``` ``` 2 RUBEENA ASHIK AGED 41 YEARS ASHIK HAMSA, ASHIK MANSIL, EZHUPUNNA, ERAMALLOOOR P.O, ALAPPUZHA., PIN - 688537 ``` ``` 3 SABEENA JISAM AGED 36 YEARS ``` ``` W/O JISAM, C.C/1/108 7G , KUNNUMPURAM, FORT KOCHI P.O, ERNAKULAM - 682001 REP BY REENA SAKEER, AGED 44 YRS, W/O SAKEER MUHAMME,D NERIMBODATHU HOUSE, ASHOKA ROAD, KALOOR P.O, ERNAKULAM., PIN - 682017 ``` 2 FAO No.31 of 2024 ``` R1 TO R3 BY ADVS.BENEDICTA VEMBLY HYBIN JOSE P.P.(K/1247/2018) CINDIA S.(K/1915/2021) VIRONY HELEN P.P.(K/659/2012) ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 20.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 FAO No.31 of 2024 ## **JUDGMENT** Anil K. Narendran, J. The appellant is the defendant in O.S.No.14 of 2021 on the file of the Sub Court, Kochi, which is one filed by the respondentsplaintiffs seeking partition of the plaint schedule property. The appellant is before the Court in this appeal, invoking the provisions under Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908, challenging the order dated 18.12.2023 of the Sub Court in I.A.(RP)No.6 of 2023 in O.S.No.14 of 2021. That application was one filed by the appellant, invoking the provisions under Order IX Rule 13 of the Code, seeking an order to set aside the ex parte preliminary decree passed in that suit on 05.07.2023. 2. On 28.02.2024, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondents by special messenger, returnable by 06.03.2024. On 06.03.2024, the respondents entered appearance through counsel. 3. Heard the learned counsel for the appellant-defendant and the learned counsel for the respondents-plaintiffs. 4. The issue that requires consideration in this appeal is as to whether any interference is warranted in the impugned order dated 18.12.2023 of the Sub Court, Kochi, whereby I.A.(RP)No.6 of 2023 filed by the defendant seeking an order to set aside the ex 4 FAO No.31 of 2024 parte preliminary decree in O.S.No.14 of 2021 stands dismissed for the reasons stated therein. 5. The reasoning of the Sub Court in paragraphs 5 to 7 of the impugned order reads thus; “5. It is admitted by the counsel appearing for the defendant that the cost ordered in I.A.No.6 of 2023 dated 24.05.2023 is not yet paid. Another interesting factor is that the defendant has been conducting the case through his power of attorney who is none other that his wife. In May 2023, I.A.No.6 of 2023 was filed by the power of attorney. The averments in the affidavit filed along with the said I.A. clearly indicate that the adjournment was sought highlighting the inconvenience of the power of attorney to adduce evidence on that day. 6. In the present application filed to set aside the exparte decree, nothing has been stated about the inconvenience of the power of attorney to adduce evidence. Non-payment of the cost ordered in I.A.No.6 of 2023 is also not mentioned in the present application. Therefore, it is obvious that defendant filed this petition suppressing some important facts, especially without mentioning anything about the power of attorney holder. A litigant who had removed the suit from the list showing the inconvenience of the power of attorney on the previous occasion and not paid the cost ordered therein is before the court with another petition to set aside the exparte decree on the 5 FAO No.31 of 2024 basis of his inconvenience on the subsequent posting, that too conveniently suppressing the afore said facts. He does not deserve any leniency from the court. 7. The defendant was only suffering from fever and his power of attorney had no inconvenience to contact the lawyer or to adduce evidence on 03.07.2023. In short, the reason stated for not participating in trial on 03.07.2023 is unsustainable and there is no valid reason to set aside the ex-parte decree.” 6. The learned counsel for the appellant-defendant would submit that I.A.(RP)No.6 of 2023 filed by the defendant invoking the provisions under Order IX Rule 13 of the Code, is one filed within the period of limitation. In view of the law laid down by the Apex Court in **G.P. Srivastava v. R.K. Raizada [(2000) 3 SCC 54]** , which was followed by this Court in **Peeves Enterprises v.** **Muhammed Ashraf [2015 (3) KHC 981]** , the reasoning of the Sub Court in the impugned order dated 18.12.2023 in I.A.(RP)No.6 of 2023 cannot be sustained in law. 7. On the other hand, the learned counsel for the respondents-plaintiffs would submit that valid reasons have been stated by the Sub Court, in the impugned order to reject the application filed by the defendant under Order IX Rule 13 of the Code, which warrants no interference in this appeal filed under Order XLIII Rule 1(d) of the Code. 6 FAO No.31 of 2024 8. 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 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 7 FAO No.31 of 2024 that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that _ex parte_ decree. 9. 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. 10. 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 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 8 FAO No.31 of 2024 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. 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. 12. Having considered the pleadings and materials on record and also the submissions made at the Bar, we notice that on an 9 FAO No.31 of 2024 earlier occasion an interlocutory application filed by the defendant for re-listing the O.S.No.14 of 2021 was allowed on payment of a cost of Rs.1,000/-, which is yet to be paid by the defendant. Taking note of the law laid down in the decisions referred to supra, we find that the application filed by the defendant for setting aside the ex parte preliminary decree in O.S.No.14 of 2021 can be allowed on payment of cost to the plaintiffs. In the result, this appeal is allowed by setting aside the order dated 18.12.2023 of the Sub Court, Kochi in I.A.(RP)No.6 of 2023 in O.S.No.14 of 2021 on payment of a cost of Rs.6,000/- to the respondents-plaintiffs, within a period of two weeks from the date of receipt of a certified copy of this judgment. On such payment being made and a memo to that effect being filed before the Sub Court, I.A.(RP)No.6 of 2023 will stand allowed and consequently, O.S.No.14 of 2021 will stand restored to file. Thereafter, the Sub Court shall proceed with the trial of O.S.No.14 of 2021, in accordance with law, as expeditiously as possible. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **G. GIRISH, JUDGE** AV/21/3