Shajahan v. Laila Beevi

## **`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 19[TH] DAY OF JULY 2023 / 28TH ASHADHA, 1945 ``` ``` FAO NO.97 OF 2020 ``` ``` AGAINST THE ORDER DATED 02.03.2020 IN I.A. NO.2 OF 2019 IN ``` ``` O.S.NO.195 of 2012 OF SUB COURT, NEDUMANGAD ``` ## **`APPELLANT/PETITIONER/DEFENDANT:`** ## **`SHAJAHAN`** ``` S/O.ALI AKBAR, KIZHAKKEKKARA VEEDU, KOPPOM, VEMBAYAM, THIRUVANANTHAPURAM. ``` ``` BY ADVS. PRAMOJ ABRAHAM ``` ## **`RESPONDENT/COUNTER PETITIONER:`** ## **`LAILA BEEVI`** ``` D/O.RUKKIYA BEEVI, HOUSE NO.3/456, KOTTUVILAKAM, ANDOORKONAM, THIRUVANANTHAPURAM-695584. ``` ``` BY ADV. ``` ``` P.Anoop(mulavana) ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 19.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` F.A.O No.97 of 2020 ## **J U D G M E N T** ## Anil K.Narendran, J. The appellant is the defendant in O.S.No.195 of 2012 on the file of the Sub Court, Nedumangad, which was one filed by the respondent herein–plaintiff for recovery of damages and for other consequential reliefs. In the suit, the defendant was set _ex parte_ and an _ex parte_ decree was passed on 21.07.2017. The defendant filed I.A No.366 of 2017 for setting aside that _ex parte_ decree, invoking the provisions under Order IX Rule 13 of the Code of Civil Procedure, 1908. That interlocutory application was dismissed for default on 01.12.2018. The appellant filed I.A.No.2 of 2019 to restore I.A.No.366 of 2017, invoking the provisions under Order IX Rule 9 of the Code of Civil Procedure. That application for restoration ended in dismissal by the order dated 02.03.2020 of the Sub Court, which is under challenge in this appeal, invoking the provisions under Order XLIII Rule 1(c) of the Code of Civil Procedure. 2. This appeal is one filed along with C.M Application No.1 of 2020 for condonation of filing delay of 122 days in filing the appeal. On 11.11.2020, this Court issued consolidated notice to the respondent. By a separate order of this date, C.M.Application ``` 3 ``` F.A.O No.97 of 2020 No.1 of 2020 is allowed by condoning the delay in filing the appeal. 3. Heard the learned counsel for the appellant-defendant and also the learned counsel for the respondent-plaintiff. 4. The issue that arises for consideration in this appeal is as to whether any interference is warranted on the impugned order dated 02.03.2020 of the Sub Court, Nedumangad, whereby I.A No.2 of 2019 in O.S.No.195 of 2012 filed by the defendant, invoking the provisions under Order IX Rule 9 of the Code of Civil Procedure, seeking an order to restore I.A.No.366 of 2017 filed under Order IX Rule 13 of the Code to set aside the _ex parte_ decree dated 01.02.2018 in O.S.No.195 of 2012, stands rejected for the reasons stated therein. 5. The learned counsel for the appellant-defendant would contend that in the affidavit filed in support of I.A.No.2 of 2019 the defendant has shown sufficient cause for the absence of the counsel for the defendant in court on 01.12.2018. When the absence of the counsel was not malafide or intentional, the court below ought to have allowed that interlocutory application, especially when it was one filed within the period of limitation. 6. On the other hand, the learned counsel for the respondent-plaintiff would submit that valid reasons have been ``` 4 ``` F.A.O No.97 of 2020 stated by the court below in the impugned order dated 02.03.2020 for dismissing I.A.No.2 of 2019. The reasoning of the court below is neither arbitrary nor illegal, warranting interference in this appeal. 7. The reasoning of the court below, as contained in paragraph 6 of the impugned order dated 02.03.2020, reads thus: “6. Perused the records. Petitioner is the defendant in the suit and the suit was posted on 18.07.2017 for evidence by including on the list. On that date the neither the defendant nor his counsel appeared before court and the case was partially decreed exparte on 21.07.2017. After that the petitioner/defendant filed I.A 366/2017 to set aside the exparte decree. But that I.A was also dismissed due to the latches on petitioners part. On going to the case records several opportunities had given to the petitioner/ her counsel to appear before court and to proceed with the case. But she had not availed the opportunities and the I.A was dismissed only due to the latches on the petitioner and her counsel. Her affidavit reveals that her counsel could not attend the court and her counsel entrusted another counsel to attend the case on the posting date and he could not attend the court in time due to traffic block etc. So evidently the reasons stated in the present application is a falsehood. Usually almost all restoration application ``` 5 ``` F.A.O No.97 of 2020 are being allowed by this court by taking a lenient approach. But the petition herein has filed a false affidavit and the application is to restore the I.A 366/2017 only as abuse of process of court which cannot be entertained. In the circumstances application dismissed. No costs.” 8. Order IX, Rule 8 of the Code of Civil Procedure deals with procedure where defendant only appears. As per Order IX, Rule 8, where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. 9. Order IX, Rule 9 of the Code provides that decree against plaintiff by default bars fresh suit. As per sub-rule (1) of Rule 9, where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the court that there was - sufficient cause for his non appearance when the suit was called on for hearing, the court shall make an order setting aside the ``` 6 ``` F.A.O No.97 of 2020 dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. As per subrule (2) of Rule 9, no order shall be made under this rule unless notice of the application has been served on the opposite party. 10. 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 ``` 7 ``` F.A.O No.97 of 2020 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. 11. 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. 12. 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 ``` 8 ``` F.A.O No.97 of 2020 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 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. ## 13. In **M. Shivananda v. M. Susheela and others [2021** **(5) KHC 357]** a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party held that, Order IX, Rule 9 of the Code of Civil Procedure enables the court to set the dismissal aside, if the plaintiff satisfies the court that there was sufficient - cause for his non appearance when the suit was called on for hearing. On the other hand, Order IX, Rule 13 of the Code enables the court which passed a decree _ex parte_ to set it aside, if the defendant satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from ``` 9 ``` F.A.O No.97 of 2020 appearing when the suit was called on for hearing. Therefore, the principle laid down by the Apex Court in **G.P. Srivastava [(2000) 3 SCC 54]** , in the context of an application filed under Order IX, Rule 13 of the Code, apply with equal force in the consideration of an application filed under Order IX, Rule 9 of the Code. 14. 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. 15. The application filed by the defendant as I.A.No.2 of 2019 is one filed to restore I.A.No.366 of 2017, the application to ``` 10 ``` F.A.O No.97 of 2020 set aside the ex parte decree dated 01.02.2018 in O.S.No.195 of 2012. I.A.No.366 of 2017 was dismissed for default on 01.12.2018. The defendant filed I.A.No.2 of 2019 seeking restoration of I.A.No.366 of 2017 wherein it was stated that though the counsel was ready to argue in I.A.No.366 of 2017 on 01.12.2018, he could not reach court in time due to traffic block. In the impugned order, the court below has stated that the reason stated in the affidavit filed in support of I.A.No.2 of 2019 is a falsehood and as such, the request for restoration of I.A.No.366 of 2017 cannot be entertained as that application is only an abuse of process of court. Having considered the pleadings and materials on record and also the submissions made at the Bar, we find that the reasoning of the Sub Court in the impugned order dated 02.03.2020 in I.A.No.2 of 2019 is perverse and patently illegal, which cannot be sustained in law. When the application filed under Order IX Rule 9 of the Code was one filed within the period of limitation, the court below ought to have allowed that application, especially when in the facts and circumstances of the case it cannot be said that the absence of the counsel for the defendant in court on 01.12.2018 is either malafide or intentional. In the above circumstances, this appeal is allowed by setting ``` 11 ``` F.A.O No.97 of 2020 aside the impugned order dated 02.03.2020 of the Sub Court, Nedumangad in I.A.No.2 of 2019 in O.S.No.195 of 2012. Consequently, I.A.No.2 of 2019 is allowed by restoring I.A.No.366 of 2017 filed by the appellant-defendant for setting aside the ex parte decree dated 21.07.2017 in O.S.No.195 of 2012. The Sub Court is directed to consider I.A.No.366 of 2017 on merits and pass appropriate orders, as expeditiously as possible, at any rate, within a period of one month from the date of appearance of both parties. Both parties shall appear before the court below on **21.08.2023** . Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** PV