Sethumadhavan Puthenveettil v. Peringottukara Namboothiri Yogakshema Sabha and The Manager, Peringottukara Yogakshema Sabha, Kutti Puram Branch

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON TUESDAY, THE 26[TH] DAY OF MARCH 2024 / 6TH CHAITHRA, 1946 FAO NO. 23 OF 2024 ``` ``` AGAINST THE ORDER DATED 04.11.2023 IN R.P.I.A.NO.4 OF 2023 OS NO.21 OF 2018 OF SUB COURT, TIRUR ``` ``` APPELLANT/APPLICANT IN R.P.I.A/DEFENDANT IN OS: ``` ## **`SETHUMADHAVAN PUTHENVEETTIL`** ``` AGED 48 YEARS S/O SREEDHARAN NAIR KONOTH, PUTHANEVEETIL HOUSE, POLPAKKARA P.O., PONNANI TALUK, MALAPPURAM, PIN - 679576 ``` ``` BY ADV NIRMAL V NAIR ``` ## **`RESPONDENTS/RESPONDENTS IN R.P.I.A/PLAINTIFFS IN OS.:`** ``` 1 PERINGOTTUKARA NAMBOOTHIRI YOGAKSHEMA SABHA K.K. MENON SHED, KANJANY- PERINGOTTUKARA ROAD, ANTHIKKAD, ANTHIKKAD P.O., THRISSUR, PIN - 680641 ``` ``` 2 THE MANAGER PERINGOTTUKARA NAMBOOTHIRI YOGAKSHEMA SABHA, KUTTIPURAM BRANCH, KUTTIPURAM P.O., MALAPPURAM, PIN - 679571 BY ADVS. N.M.MADHU C.S.RAJANI(K/2275/1999) ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 26.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 FAO NO. 23 OF 2024 ## **JUDGMENT** ## Anil K.Narendran, J. The appellant is the defendant in O.S.No.21 of 2018 on the files of the Sub Court, Tirur, a suit filed by the respondents hereinplaintiffs, seeking a decree for recovery of an amount of Rs.26,80,050/- together with interest at the rate of 18% per annum, from the date of the suit. In the suit, the defendant was set _ex parte_ on 21.06.2018. That was set aside by order dated 18.12.2019. Thereafter, the defendant did not file written statement. He was again set _ex parte_ and an _ex parte_ decree was passed on 18.01.2023. To set aside that _ex parte_ decree, the defendant filed R.P.I.A.No.4 of 2023, invoking the provisions under Order IX Rule 13 of the Code of Civil Procedure, 1908, through his power of attorney holder. The plaintiffs filed counter statement opposing the relief sought for in that application. After considering the rival contentions, the Sub Court, by the order dated 04.11.2023, dismissed R.P.I.A.No.4 of 2023, for the reasons stated therein. Feeling aggrieved, the appellant-defendant is before this Court in this appeal invoking the provisions under Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908. 2. This appeal is one filed along with C.M.Application No. 1 of 2024, for condonation of delay of 13 days, which was condoned 3 FAO NO. 23 OF 2024 by the order dated 25.03.2024. 3. Heard the learned counsel for the appellant-defendant and the learned counsel for the respondents-plaintiffs. 4. The issue that arises for consideration in this appeal is as to whether any interference is warranted in the impugned order dated 04.11.2023 of the Sub Court, Tirur, whereby R.P.I.A.No.4 of 2023 filed by the appellant-defendant, invoking the provisions under Order IX Rule 13, stands dismissed for the reasons stated therein. 5. The learned counsel for the appellant would contend that, when the application to set aside the _ex parte_ decree is one filed within the period of limitation, the Sub Court ought to have allowed that application, taking note of the law laid down by the Apex Court in **G.P. Srivastava v. R.K. Raizada [(2000) 3 SCC 54]** and that laid down by a Division Bench of this Court in **Peeves Enterprises v. Muhammed Ashraf [2015 (3) KHC 981]** . 6. On the other hand, the learned counsel for the respondents-plaintiffs would submit that, the defendant was earlier set _ex parte_ on 26.06.2018, which was set aside by the order dated 18.12.2018. Thereafter, the defendant has not chosen to file a written statement, till he was again set _ex parte_ by the order dated 18.01.2023. Therefore, the trial court cannot be found fault for 4 FAO NO. 23 OF 2024 rejecting the application, especially when the power of attorney executed by the defendant, in favour of his wife, is one dated 06.10.2022, and R.P.I.A.No.4 of 2023 was filed only on 16.02.2023. 7. 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 5 FAO NO. 23 OF 2024 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. 8. 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. 9. 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 6 FAO NO. 23 OF 2024 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. For the absence of a party in the case the other side can be compensated by adequate costs and the _lis_ decided on merits. 10. 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 inconvenience caused to him. But any such condition shall not be too onerous. 11. In the instant case, R.P.I.A.No.4 of 2023 filed by the 7 FAO NO. 23 OF 2024 appellant-defendant invoking the provisions under Order IX Rule 13 of the Code for setting aside the ex parte decree dated 18.01.2023 in O.S.No.21 of 2018 is one filed within a period of limitation. On an earlier occasion the defendant was set ex parte on 21.06.2018, which was set aside by an earlier order of the Sub Court dated 18.12.2019. 12. Viewed in the light of the law laid down by the Apex Court in **G.P. Srivastava [(2000) 3 SCC 54]** and that laid down by a Division Bench of this Court in **Peeves Enterprises [2015 (3) KHC 981]** , we find that the reasoning of the Sub Court in the impugned order dated 04.11.2023 whereby R.P.I.A.No.4 of 2023 filed by the appellant-defendant to set aside the ex parte decree cannot be sustained in law. Considering the facts and circumstances of the case, R.P.I.A.No.4 of 2023 is allowed on payment of cost of Rs.20,000/-, payable to the respondentsplaintiffs, so as to enable the defendant to contest the suit after filing written statement. In such circumstances, this appeal is allowed by setting aside the impugned order dated 04.11.2023 of Sub Court, Tirur in R.P.I.A.No.4 of 2023 in O.S.No.21 of 2018, on payment of a cost of Rs.20,000/-, payable to the plaintiffs, within a period of two weeks from the date of receipt of a certified copy of this judgment. On 8 FAO NO. 23 OF 2024 such payment being made within the aforesaid period and a memo to that effect being filed before the Sub Court, R.P.I.A.No.4 of 2023 will stand allowed. Consequently, O.S.No.21 of 2018 will stand restored to the file of the Sub Court, Tirur. The Sub Court shall grant a reasonable time to the appellant-defendant to file written statement and thereafter, finally dispose of O.S.No.21 of 2018, as expeditiously as possible, at any rate, within a further period of four months. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **HARISANKAR V. MENON, JUDGE** uu