Shyla Beevi and Junida Beevi v Abdul Majeed Safiya Beevi 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** **THURSDAY, THE 8[TH] DAY OF JUNE 2023 / 18TH JYAISHTA, 1945** **FAO NO. 287 OF 2011** **AGAINST THE ORDER DATED 24.06.2011 IN I.A.NO.2436 OF 2010 IN** **O.S.NO.24 OF 2007 ON THE FILE OF SUB COURT,ATTINGAL APPELLANTS/PETITIONERS/PLAINTIFFS:** **1 SHYLA BEEVI AGED 35 YEARS, MUNJANATTU VEEDU, KAVALAYOOR DESOM, MANAMBOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT.** **2 JUNIDA BEEVI D/O.MUHAMMED ISMAIL AGED 38 YEARS, MUNJANATTU VEEDU, KAVALAYOOR, DESOM, MANAMBOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT.** **BY ADV.** **G.S.REGHUNATH** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** - **1 ABDUL MAJEED SAFIYA BEEVI (DECEASED) D/O.ABDUL MAJEED, SAFIYA MANZIL, KAVALAYOOR, DESOM, MANAMBOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT.** - **2 ABDUL SALAM S/O.ABDUL RAZAK SAFIYA MANZIL, KAVALAYOOR DESOM,, MANAMBOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT.** - **3 ADDL.R3 ABDUL SALAM AGED 65 YEARS** 2 F.A.O.No.287 of 2011 **HUSBAND OF ABDUL MAJEED SAFIYA BEEVI, MUNJINAD VEEDU, KAVALAYOOR, KAVALAYOOR POST, THIRUVANANTHAPURAM DISTRICT** - **4 ADDL.R4 FAHAD AGED 30 YEARS** - **SON OF ABDUL MAJEED SAFIYA BEEVI, MUNJINAD VEEDU, KAVALAYOOR, KAVALAYOOR POST, THIRUVANANTHAPURAM DISTRICT** - **5 ADDL.R5 JASEENA AGED 25 YEARS DAUGHTER OF ABDUL MAJEED SAFIYA BEEVI, MUNJINAD VEEDU, KAVALAYOOR, KAVALAYOOR POST, THIRUVANANTHAPURAM DISTRICT (LEGAL HEIRS OF DECEASED R1 ARE IMPLEADED AS ADDL. RESPONDENTS R3 TO R5 AS PER THE ORDER DATED 29/05/2023 IN IA NO.2/20239 (1135/2013)]** **BY ADV.** **SRI.T.I.UNNIRAJA - R2** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 08.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 F.A.O.No.287 of 2011 ## **J U D G M E N T** ## P.G.Ajithkumar, J. This appeal under Order XLIII Rule 1(c) of the Code of Civil Procedure, 1908 was filed by the plaintiffs in O.S.No.24 of 2007 on the file of the Sub Court, Attingal. The suit was dismissed for default on 19.11.2010. The appellants filed I.A No.2436 of 2010 for restoration of the suit on file invoking the provisions of Order IX rule 9 of the Code. The Sub Court dismissed that application as per the order dated 24.06.2011. The said order is under challenge in this appeal. 2. The 1[st] respondent expired on 02.08.2011. Her legal representatives are brought on record who are respondents Nos. 3 to 5. 3. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents. 4. The suit was initially filed before the Munsiff Court, Attingal seeking a decree of prohibitory injunction. During the pendency of the suit, the original defendants allegedly cut 4 F.A.O.No.287 of 2011 down trees from the plaint schedule property, and therefore the plaint was amended. Since pecuniary jurisdiction exceeded the limits of Munsiff court, the plaint was returned. It was represented before the Sub Court, Attingal where it was numbered as O.S. No.24 of 2007. Original defendants have filed written statements. The suit was scheduled for trial on 16.11.2010. On that day, the trial could not be held since the original defendants filed an application for appointment of a Commission. After dismissing that application, the suit was adjourned to 19.11.2010. On that day, the appellants failed to appear before the court and therefore the suit was dismissed for default. 5. The appellants filed I.A. No.2436 of 2010 within the statutory period. The court below stating the reason that no medical certificate was produced by the appellants in order to substantiate their contention that they fell ill, and therefore they could not appear before the Court on 19.11.2010, dismissed that application. The learned counsel appearing for the appellant would submit that having the appellants 5 F.A.O.No.287 of 2011 appeared before the court on 16.11.2010, they could well appear in court on 19.11.2010 unless they were prevented by illness. It may be noted that on 16.11.2010, the trial could not be held not due to any fault on the part of the appellant. From the aforesaid circumstances, the probable inference is that the appellants were not negligent in prosecuting the suit. 6. 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 6 F.A.O.No.287 of 2011 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 liberally construed to enable the court to do complete justice between the parties, particularly when no 7 F.A.O.No.287 of 2011 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** , 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. For the absence of a party in the case the 8 F.A.O.No.287 of 2011 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** , 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. In the light of the law laid down in the aforesaid decisions, I.A.No.2436 of 2010 is liable to be allowed. Therefore this appeal is allowed. Order in I.A. No.2436 of 9 F.A.O.No.287 of 2011 2010 dated 24.06.2011 of the Sub Court, Atttingal is set aside. That application stands allowed. The Sub Court, Attingal will restore O.S.No.24 of 2007 on file and proceed with it in accordance with law. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** PV