Santosh Kumar P.K. v. Thomas K. Joy and Ponnamma K. Joy

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** ## **THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN** **&** **THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **THURSDAY, THE 9TH JUNE 2011 / 19TH JYAISHTA 1933** **FAO.No. 318 of 2010()** **-----------------------------AGAINST THE ORDER DTD. 31.8.2010 IN IA. NO.4280/2010 & 4282/2010 IN OS.81/2009 & NO.79/09 of IIND ADDITIONAL SUB COURT,ERNAKULAM** **....................** ## **APPELLANT** **--------------------** **SANTHOSH KUMAR.P.K., AGED 40, S/O.KUMARAN, PULICKAL HOUSE, PATTIMATTOM P.O., KUNNATHUNADU, ERNAKULAM.** **BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.ADEEP ANWAR** ## **RESPONDENT(S):** **-------------------------** **1. THOMAS.K.JOY, S/O.KURUVILA, AGED 52 YEARS, MULAMOOTTIL HOUSE, PUTHUPALLY PO, PUTHUPALLY VILLAGE, KOTTAYAM TALUK, KOTTAYAM DIST. NOW RESIDING AT 14904, DONNA DRIVE, SILVER SPRING, MD 20905, USA.** **2. PONNAMMA.K.JOY, W/O.THOMAS.K.JOY, AGED 51, MULAMOOTTIL HOUSE,PUTHUPALLY PO, PUTHUPALLY VILLAGE, KOTTAYAM TALUK, KOTTAYAM DIST. NOW RESIDING AT 14904, DONNA DRIVE, SILVER SPRING, MD 20905, USA.** **BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE BY ADVS.SMT.MANJU RAJAN SRI.REJI GEORGE** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 09/06/2011, ALONG WITH FAO NO. 317 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **tss** ## **ORDER ON IA. NO. 3680/2010 IN F.A.O. NO.318/2010** ## **DISMISSED** **09/06/2011 SD/- THOTTATHIL B.RADHAKRISHNAN, JDUGE SD/- S.S.SATHEESACHANDRAN, JUDGE** **TRUE COPY** **P.S. TO JUDGE** **tss** ## Thottathil B.Radhakrishnan ## & ## S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = F.A.O.No.318 of 2010 & F.A.O.No.317 of 2010 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 9[th] day of June, 2011. ## Judgment ## Thottathil B.Radhakrishnan, J. ## F.A.O.No.318 of 2010 1.This is an appeal by the defendant in a suit to have a sale deed declared as void, or to set it aside. The plaintiffs had admittedly executed that deed in 2007 in favour of the defendant. The suit was laid in 2009 for cancellation of that deed. After the defendant entered appearance, he had not filed written statement, though the case stood posted on different occasions in May and June, 2009 after an earlier exercise of setting aside an ex parte order. The suit was, ultimately, decreed ex parte. 2.The defendant applied to have the ex parte decree FAOs318/10 & 317/10 -: 2 :- set aside. He also filed an application seeking condonation of delay of more than 340 days in filing such application. He pleaded that his uncle Raghavan was seriously ill and there was a Mental Health Act proceedings initiated by Gouri, the sister of Raghavan in which the defendant (the appellant before us) was contesting by entering appearance, however that, Raghavan fell victim to lung cancer and ultimately died on 15.10.2009. He said that these were the reasons which prevented the defendant from appearing and contesting the suit and for the delay in applying to have the ex parte decree set aside. - 3.We see that substantially valuable properties within Thrikkakkara (Kakkanad)Village in Ernakulam are involved in the litigation. The document sought to be set aside covers 36 cents of land stated to have been sold and another 10 cents which is stated to have been given free of cost. FAOs318/10 & 317/10 -: 3 :- 4.The learned Senior counsel appearing for the respondents pointed out that though the death of Raghavan was on 15.10.2009, the application to set aside the ex parte decree was filed long thereafter. The learned senior counsel relied on the judgment of the Hon'ble Supreme Court in Balwant Singh v. Jagdish Singh [(2010) 8 SCC 685] and the copy of the judgment of the Apex Court in Civil Appeal No.1467 of 2011 which is certified for reporting. The gist of those two precedents stands to advise that the courts have always to maintain a clear understanding of the concept of “sufficient cause” for the purposes of Section 5 of the Limitation Act and Rules 9 and 13 of Order IX and Rule 9(2) of Order XXII of CPC. The concept of “sufficient cause” as occurring in different statutes has to be appropriately assimilated by maintaining the clear distinction between the concepts of sufficiency, adequacy etc. Obviously, sufficiency or otherwise of the cause that is offered as the explanation for condonation of delay or for restoration and FAOs318/10 & 317/10 -: 4 :- setting aside the ex parte decree depends upon the facts of each case. Equally, as noted by the Apex Court in the aforesaid decisions, doing substantial justice to all the parties concerned is also of prime concern to ensure that ultimately, the technicalities of law should not prevent the court from doing substantial justice as has been laid down in the different precedents referred to by their Lordships, including State of Bihar & Ors. v. Kameshwar Prasad Singh & Anr. [AIR 2000 SC 2306]. 5.In the backdrop of the law as noticed above, we notice that the suit was decreed ex parte on 17.6.2009, obviously, during the period when the Mental Health Act proceedings and the health of Raghavan, the uncle, would have been matters of prime concern for the defendant. We also see that this is a case where the defendant, the nephew of a person in relation to whom Mental Health Act proceeding was pending and who later contracted lung cancer and succumbed to it, was FAOs318/10 & 317/10 -: 5 :- in the process of taking care of that uncle and may be, ultimately, cleared from the aftermath of the loss of the uncle and then moved the court below for relief, to have the ex parte decree set aside thereby paving way for trial of a suit relating to title to property on merits. We are, therefore, inclined to think that this is a case in which the court below ought to have exercised its discretion in accordance with law, by holding that the appellant had shown sufficient cause and the application for condonation of delay and the application to set aside the ex parte decree ought to have been allowed, at least, on terms since we do not find any reason why imposition of costs would not compensate the plaintiffs for any delay in the matter. 6.In the result, this appeal is allowed and the impugned orders are set aside and as a consequence, I.A.Nos.4280 and 4282 of 2010 in O.S.81 of 2009 on the file of the Principal Sub Court, Ernakulam will stand allowed, on condition FAOs318/10 & 317/10 -: 6 :- that the appellant pays the respondents through the counsel appearing for the respondents before this Court an amount of Rs.25,000/- as costs within a period of one month. The parties are directed to appear before the court below on 18[th] July, 2011 and the court below will proceed with the suit, if the conditions as aforesaid are complied with to its satisfaction. ## F.A.O.No.317 of 2010 - 7.This appeal is against an order dismissing an application to set aside an ex parte decree passed in O.S.No.79 of 2009 of the II Additional Sub Court, Ernakulam and an application for condonation of delay in filing the aforesaid application. The two defendants are the appellants. - 8.The respondents-plaintiffs sued the defendants and the second appellant's husband Raghavan for recovery of possession of the plaint schedule FAOs318/10 & 317/10 -: 7 :- property, for mandatory injunction and prohibitory injunction. The suit was taken up for trial along with O.S.80 of 2009 filed for prohibitory injunction. Both the suits were decreed ex parte. 9.In so far as the appeal in hand is concerned, the appellants before us filed the application to have the ex parte decree set aside. They projected the fact that the second defendant Raghavan became sick and he was the subject matter of proceedings under the Mental Health Act initiated by Gouri, his sister. It is pointed out that his wife Leela, the second appellant had contested by filing certain objections in the Mental Health Act proceedings. The first appellant, the nephew of Raghavan, was also contesting those proceedings. Ultimately, with the passage of time, Raghavan contracted lung cancer and that led to his demise on 15.10.2009. It was before that, i.e., on 17.6.2009, that the ex parte decree was passed. FAOs318/10 & 317/10 -: 8 :- - 10.We have, supra, allowed the connected appeal by the first appellant herein against the refusal of the court below to set aside ex parte decree in the connected suit in which the respondents herein had sought setting aside a document of sale executed by them in favour of the first appellant herein. We had found therein that the first appellant herein, who was the sole appellant in the other appeal, was prevented by sufficient cause attributable to the situation of Raghavan, as noticed by us. Ultimately, that appeal was allowed on terms, supra. - 11.In so far as the materials in the suit from which this appeal arises, are concerned, we have before us the fact that MHOP filed in relation to Raghavan by Gouri was, ultimately, dismissed on 4.12.2009, obviously, after the demise of Raghavan, though the dismissal was on account of non-appearance of Gouri. FAOs318/10 & 317/10 -: 9 :- 12.On the whole, we are of the view that the merits of the matter needs to be gone into to render substantial justice between parties and the explanations offered by the appellants for their non-appearance before the court below when the suit was taken up for trial and also for condonation of delay in instituting the application to set aside the ex parte decree are sufficient causes within the gamut of Order IX Rule 13 of the CPC as well as Section 5 of the Limitation Act. 13.Resultantly, we are of the view that the court below ought to have exercised its discretion in accordance with law and the applications ought to have been allowed on terms. In the result, this appeal is allowed and the impugned order is set aside and I.A.Nos.4281 and 4283 of 2010 in O.S.No.79 of 2009 of the II Additional Sub Court, Ernakulam are allowed on condition that the appellants pay the respondents FAOs318/10 & 317/10 -: 10 :- through the learned counsel appearing for them before this Court an amount of Rs.25,000/- as costs within one month. The parties are directed to appear before the court below on 18[th] July, 2011 and the court below will proceed with the suit, if the conditions as aforesaid are complied with to its satisfaction. ## Thottathil B.Radhakrishnan, Judge. S.S.Satheesachandran, Judge. Sha/1706