Sebastian v. Margaret Mary alias Beena and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` WEDNESDAY, THE 31[ST] DAY OF MAY 2023 / 10TH JYAISHTA, 1945 FAO NO.105OF 2016 ``` ``` AGAINST THE ORDER DATED 05.03.2016 IN I.A.NO.5350 OF 2015 IN ``` ``` O.S.NO.836 OF 2011 OF I ADDITIONAL SUB COURT, ERNAKULAM ``` ## **`APPELLANT/PETITIONER/2ND DEFENDANT:`** ``` SEBASTIAN, AGED 56 YEARS S/O.FRANCIS, KUTTISSERY HOUSE, MULAVUKADU P O, MULAVUKADU VILLAGE, PIN 682504 ``` ``` BY ADVS.SRI.DINESH MATHEW J.MURICKEN SRI.K.A.ABHILASH ``` ## **`RESPONDENTS/RESPONDENTS/PLAINTIFFS & 1ST DEFENDANT:`** - **`1 MARGARET MARY ALIAS BEENA, AGED ABOUT 49 YEARS, W/O. C.J.XAVIER, CHALAVEETTIL HOUSE, KALLENCHERRY, KUMBALANGHI NORTH P O, KUMBALANGHI, PIN 682007`** - **`2 ELIZABETH ALIAS SEENA, AGED ABOUT 46 YEARS W/O.JOY, KANDATHIPARAMBIL HOUSE, KUMBALANGHI NORTH P O, KUMBALANGHI, PIN 682007`** - **`3 CHARLOSE ALIAS CHARLY, AGED ABOUT 62 YEARS S/O.FRANCIS, KUTTISSERY HOUSE, NETTOOR SOUTH, NETTOOR P O, MARADU, PIN 682040`** ``` R1 & R2 BY ADVS.SRI.P.T.MOHANKUMAR SRI.GEORGE CHERIAN ``` ``` SRI.RAJESH CHERIAN KARIPPAPARAMBIL R3 BY ADV.SRI.NABIL KHADER ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 31.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 FAO No.105 of 2016 ## **JUDGMENT** ## Anil K. Narendran, J. The appellant is the 2[nd] defendant in O.S.No.836 of 2011 on the file of the First Additional Sub Court, Ernakulam, a suit for partition filed by respondents 1 and 2 herein-plaintiffs. In that suit, the appellant was set _ex parte_ and an _ex parte_ decree was passed on 20.03.2015. The said decree was set aside by the order dated 28.07.2015 in I.A.No.1563 of 2015. Later the appellant was again set _ex parte_ and an _ex parte_ decree was passed on 17.11.2015. He filed I.A.No.5350 of 2015, an application under Order IX Rule 13 of the Code of Civil Procedure, 1908, seeking an order to set aside that _ex parte_ decree. That application ended in dismissal by the order dated 05.03.2016, which is under challenge in this appeal filed invoking the provisions under Order XLIII Rule 1(d) of the Code of Civil Procedure. 2. On 04.04.2016, when this appeal came up for admission, this Court issued notice to the respondents. 3. Heard the learned counsel for the appellant-2[nd] defendant, the learned counsel for respondents 1 and 2-plaintiffs and the learned counsel for the 3[rd] respondent-1[st] defendant. 4. The learned counsel for the appellant-2[nd] defendant 3 FAO No.105 of 2016 would submit that I.A.No.5350 of 2015 in O.S.No.836 of 2011, the application under Order IX Rule 13 of the Code of Civil Procedure, was one filed within the period of limitation. Therefore, the Sub Court ought to have allowed that interlocutory application. 5. On the other hand, the learned counsel for respondents 1 and 2-plaintiffs would point out that it is for the second time that the appellant-2[nd] defendant was set _ex parte_ and therefore, the Sub Court cannot be found fault with in dismissing that interlocutory application, by the impugned order dated 05.03.2016. The learned counsel would also point out that, during the pendency of this appeal, the Sub Court appointed an advocate commission in the final decree proceedings. 6. Order IX, Rule 13 of the Code of Civil Procedure provides for setting aside of _ex parte_ decree 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 4 FAO No.105 of 2016 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. 7. 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 5 FAO No.105 of 2016 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. 8. In **G.P. Srivastava [(2000) 3 SCC 54]** , 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 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. FAO No.105 of 2016 For the absence of a party in the case the other side can be compensated by adequate costs and the _lis_ decided on merits. 9. In **Peeves Enterprises v. Muhammed Ashraf [2015 (3) KHC 981]** , relying on the law laid down by the Apex Court in **G.P. Srivastava [(2000) 3 SCC 54]** , 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 inconvenience caused to him. But any such condition shall not be too onerous. 10. The principle laid down in **Peeves Enterprises [2015 (3) KHC 981]** was reiterated in **Shivananda M. v. M. Susheela [2021 (5) KHC 357]** . It was held that ‘sufficient cause’ for nonappearance 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 7 FAO No.105 of 2016 made out for the 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. In a case where a 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 view of the law laid down in the decisions referred to supra, when the application under Order IX, Rule 13 of the Code of Civil Procedure is one filed within the period of limitation, the discretion has to be exercised in favour of the defendant, when no negligence or inaction is imputable to the defendant and his absence was not mala fide or intentional. For the absence of the defendant, the plaintiff can be compensated by adequate costs and the _lis_ decided on merits. 12. The learned counsel for respondents 1 and 2-plaintiffs would point out that in the final decree proceedings, a Commission was deputed and the plaintiffs paid a sum of 8 FAO No.105 of 2016 Rs.10,000/- towards batta. The Advocate Commissioner has already filed a report. 13. Though this appeal was admitted on 04.04.2016, the appellant has not chosen to bring up the matter before the Bench for an interim order in I.A.No.476 of 2016, till the filing of I.A.No.1 of 2023 for early disposal, which was filed only on 25.05.2023. After entering appearance, respondents 1 and 2- plaintiffs have not chosen to bring up the matter before the Bench for early disposal. 14. Considering the facts and circumstances of the case, in the light of the law laid down in the decisions referred to supra, we find that the order dated 05.03.2016 of the First Additional Sub Court, Ernakulam in I.A.No.5350 of 2015 in O.S.No.836 of 2011 requires interference; however on payment of costs. 15. In the result, this appeal is allowed and the impugned order dated 05.03.2016 of the First Additional Sub Court, Ernakulam in I.A.No.5350 of 2015 in O.S.No.836 of 2011 is set aside on payment imposing a cost of Rs.15,000/- (Rupees Fifteen thousand only) payable by the appellant-2[nd] defendant to respondents 1 and 2-plaintiffs, within two weeks from the date of 9 FAO No.105 of 2016 receipt of a certified copy of this judgment. On such payment being made, the impugned order dated 05.03.2016 in I.A.No.5350 of 2015 in O.S.No.836 of 2011 of the First Additional Sub Court, Ernakulam will stand set aside and consequently the _ex parte_ decree passed in O.S.No.836 of 2011 will stand set aside. Thereafter, the Sub Court shall proceed with the suit and pass appropriate orders, as expeditiously as possible, at any rate, within a period of three months, since the suit is of the year 2011. Both parties shall appear before the First Additional Sub Court, Ernakulam, **on 15.06.2023** . Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** AV/3/6