Sarada Amma v. Rajeev Kumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 19[TH] DAY OF NOVEMBER 2021/28TH KARTHIKA, 1943 FAO NO. 68 OF 2021** **AGAINST THE ORDER DATED 10.09.2021 IN R.P.I.A.NO.3 OF 2019 IN O.S.NO.9 OF 2015 OF SUB COURT, KOYILANDI** ## **APPELLANT/PETITIONER/DEFENDANT:** **SARADA AMMA AGED 72 YEARS W/O.GANGADHARAN MARAR, PRASADAM (H), PANANGAD AMSOM, NIRUMALLUR DESOM, KOYILANDY TALUK, KOZHIKODE.** **BY ADVS. M.PROMODH KUMAR MAYA CHANDRAN** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **RAJEEV KUMAR, AGED 49 YEARS S/O.BALAKRISHNAN NAIR, KAIRALI NAGAR, HOUSE NO.24/84, VENGERI AMSOM, NEDUNGOTTOOR DESOM, KOZHIKODE TALUK - 670 010.** **BY ADVS.T.K.SANDEEP ARJUN SREEDHAR ARUN KRISHNA DHAN** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 19.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- FAO NO. 68 OF 2021 ## **JUDGMENT** ## Anil K. Narendran, J. The appellant, who is a senior citizen aged 72 years, is the defendant in O.S.No.9 of 2015 on the file of the Sub Court, Koyilandi, a suit for specific performance of contract dated 30.04.2014, which was subsequently amended as one for return of the advance amount. The appellant filed written statement contending that the contract failed due to non performance of obligation by the plaintiff and she has to suffer huge loss. She prayed for adjustment of the advance amount towards the damages she sustained. 2. On 08.10.2018, when the suit was listed for trial, the petitioner's son, Prasanth, applied for adjournment since she was laid up. Later, she was set ex-parte and an ex-parte decree dated 11.10.2018 has also been passed. By that time, her son, Prasanth, moved to Perinthalmanna and the petitioner alone was residing at her house. On recovery from her illness, she filed R.P.I.A.No.3 of 2019 for setting aside the ex parte decree, under Order IX, Rule 13 of the Code of Civil -3- FAO NO. 68 OF 2021 Procedure, 1908. She has also filed I.A.No.649 of 2019 for condonation of delay of 402 days in filing R.P.I.A.No.3 of 2019, under Section 5 of the Limitation Act, 1963. 3. In the memorandum of appeal, it is stated that, after filing of the aforesaid interlocutory applications, her son, who was infected with Covid and admitted in MIMS Hospital, Kozhikkode, died on 05.07.2021. She was also infected with Covid. By the order dated 02.09.2021 in I.A.No.649 of 2019 in I.A.No.3 of 2019 in O.S.No.9 of 2015, the court below condoned the delay of 402 days, on payment of a cost of Rs.5,000/-. By the order dated 03.09.2021 in R.P.I.A.No.3 of 2019, the court below set aside the ex-parte decree on payment of a cost of Rs.15,000/-. The appellant was directed to pay the cost on or before 10.09.2021. 4. Since the appellant could not pay cost within the time limit stipulated in that order, the court below dismissed R.P.I.A.No.3 of 2019 by the order dated 10.09.2021. Feeling aggrieved, the appellant is before this Court in this appeal filed under Order XLIII Rule 1(d) of the Code of Civil Procedure. -4- FAO NO. 68 OF 2021 5. On 22.10.2021, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondent, returnable within four weeks. This Court granted an interim stay of the execution of decree in O.S.No.9 of 2015 in Sub Court, Koyilandi, for a period of one month. 6. Heard the learned counsel for the appellantdefendant and also the learned counsel for the respondentplaintiff. 7. The issue that arises for consideration in this appeal is as to whether any interference is warranted on the order dated 02.09.2021 of the Sub Court, Koyilandi in I.A.No.649 of 2019 in R.P.I.A.No.3 of 2019 in O.S.No.9 of 2015 and the order dated 03.09.2021 in R.P.I.A.No.3 of 2019. 8. Order IX, Rule 13 of the Code of Civil Procedure 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 -5- FAO NO. 68 OF 2021 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 that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that _ex parte_ decree. -6- FAO NO. 68 OF 2021 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 -7- FAO NO. 68 OF 2021 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. 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 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 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 -8- FAO NO. 68 OF 2021 inconvenience caused to him. But any such condition shall not be too onerous. 12. During the course of arguments, the learned counsel for the appellant would submit that the delay in filing the application to set aside the ex parte decree, invoking the provisions under Order IX Rule 13 of the Code, occurred for the reasons stated in the affidavit filed in support of I.A.No.649 of 2019, the application filed under Section 5 of the Limitation Act. During the pendency of the aforesaid interlocutory applications, the appellant lost her son, who was conducting her case before the court below, due to Covid. He died on 05.07.2021. The appellant was also infected with Covid. 13. Having considered the submissions made by the learned counsel on both sides, this Court finds that though the court below by the order dated 02.09.2021 condoned the delay of 402 days in filing the application to set aside the exparte decree, on payment of a cost of Rs.5,000/-, which was followed by the order dated 03.09.2021 setting aside the exparte decree dated 11.10.2018, on payment of a cost of -9- FAO NO. 68 OF 2021 Rs.15,000/-, the appellant could not remit the said amount on or before 10.09.2021, which had resulted in the dismissal of the application to set aside the ex-parte decree, i.e., R.P.I.A.No.3 of 2019 in O.S.No.9 of 2015, by the order dated 10.09.2021. Considering the fact that the appellant, who is a senior citizen aged 72 years, lost her son on 05.07.2021 due to Covid and that, she was also infected with Covid, taking a lenient view, we deem it appropriate to set aside the order dated 10.09.2021 in R.P.I.A.No.3 of 2019 in O.S.No.9 of 2015 and allow that application on payment of a cost of Rs.5,000/-, in addition to the cost of Rs.5,000/- ordered on 02.09.2021 in I.A.No.649 of 2019 for the condonation of delay of 402 days. On payment of a cost of **Rs.10,000/-** (5,000 + 5,000) to the respondent-plaintiff, within a period of three weeks from the date of receipt of a certified copy of this judgment, R.P.I.A.No.3 of 2019 and also the connected interlocutory application, i.e., I.A.No.649 of 2019, will stand allowed and consequently, the ex-parte decree dated 11.10.2018 in O.S.No.9 of 2015 will stand set aside. Thereafter, the Sub Court shall proceed with O.S.No.9 of 2015 and dispose of the -10- FAO NO. 68 OF 2021 same, as expeditiously as possible, at any rate, within a period of five months. 14. Both parties shall appear before the court below on ## **20.12.2021** . The appeal is allowed as above. ## **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** AV/20/11 -11- FAO NO. 68 OF 2021 ## **APPENDIX OF FAO 68/2021** ## **PETITIONER ANNEXURES** **ANNEXURE 1 THE CERTIFIED COPY OF THE ORDER IN R.P.I.A.NO.3/2019 DATED 10/09/2021 IN O.S.NO.9/2015 OF SUBORDINATE JUDGE DATED 03/09/2021.** **ANNEXURE 2 THE CERTIFIED COPY OF THE ORDER IN IA 649/2019 IN OS 9/2015 DATED 02/09/2021.**