Subha Thomas & Latha Thomas v Joy Thomas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN** ## **&** **THE HONOURABLE MRS. JUSTICE M.R. ANITHA** **WEDNESDAY, THE 11[TH] DAY OF AUGUST 2021 / 20TH SRAVANA, 1943** **F.A.O.NO.11 OF 2020** **AGAINST THE ORDER IN I.A.No.1465/2019 IN O.S.NO.124/2018 OF** **II ADDITIONAL SUB COURT, THRISSUR, DATED 31.08.2019** ## **APPELLANTS/PETITIONERS/DEFENDANTS:** **1 SUBHA THOMAS AGED 38 YEARS D/O. ALAKKAPILLY THOMAS, CHIRAKKAKODE DESOM, MADAKKATHRA VILLAGE, THRISSUR TALUK - 680 006. 2 LATHA THOMAS AGED 45 YEARS D/O. ALAKKAPILLY THOMAS, CHIRAKKAKODE DESOM, MADAKKATHRA VILLAGE, THRISSUR TALUK - 680 006. REPRESENTED BY HER POWER OF ATTORNEY HOLDER SUBHA THOMAS, 38 YEARS, D/O ALAKKAPILLY THOMAS, CHIRAKKAKODE DESOM, MADAKKATHRA VILLAGE, THRISSUR TALUK – 680 006** **A1 BY ADVS. SANTHOSH P.PODUVAL** **R.RAJITHA** **A2 “ P.C.THOMAS ROJO J.THURUTHIPARA P.T.JUDY BLOSSOM MATHEW** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **JOY THOMAS AGED 64 YEARS S/O. PALLIVATHUKKAL JOSEPH, KUTTANELOOR DESOM, OLLUR VILLAGE, THRISSUR TALUK.680 306 BY ADV SMT.P.K.PRIYA** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 11.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** F.A.O.No.11 of 2020 2 ## **JUDGMENT** ## **Anil K. Narendran, J.** This appeal, filed under Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908, arises out of the order of the Second Additional Sub Court, Thrissur, dated 31.08.2019 in I.A.No.1465 of 2019 in O.S.No.124 of 2018. The appellants are the defendants in O.S.No.124 of 2018 filed by the respondentplaintiff for realisation of Rs.35,00,000/- towards balance sale consideration, together with interest and cost, from the defendants and their assets. The Sub Court decreed the suit _exparte_ , by the judgment dated 21.03.2019, directing the 1st defendant to pay an amount of Rs.35,35,000/- to the plaintiff, together with interest at the rate of 9% per annum from the date of suit till realisation. The defendants filed I.A.No.1465 of 2019, under Order IX Rule 13 of the Code of Civil Procedure, 1908, to set aside the _ex-parte_ decree dated 21.03.2019 in O.S.No.124 of 2018. The plaintiff filed objection, opposing the relief sought for in that interlocutory application. After considering the rival contentions, the Sub Court, by the impugned order dated 31.08.2019, dismissed I.A.No.1465 of 2019 on the ground that the application lacks bonafides. Feeling aggrieved by that order, the defendants are before this Court in F.A.O.No.11 of 2020 3 this appeal. 2. On 22.01.2020, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondent by speed post. On 06.07.2021, in I.A.No.1 of 2020, this Court granted an interim stay of the operation of the judgment and decree in O.S.No.124 of 2018, for a period of one month. On 06.07.2021, this Court called for the lower court records. Thereafter, on 30.07.2021, this Court called for a report from the Sub Court. 3. Heard the learned counsel for the appellantsdefendants and also the learned counsel for the respondentplaintiff. 4. The issue that arises for consideration in this appeal is as to whether any interference is warranted on the impugned order dated 31.08.2019 of the Sub Court in I.A.No.1465 of 2019 in O.S.No.124 of 2018. 5. The plaintiff filed O.S.No.124 of 2018 before the Sub Court for realisation of Rs.35,00,000/- from the defendants and their assets, towards balance sale consideration, together with interest and cost. As evident from the proceedings paper in O.S.No.124 of 2018, the plaint was presented before the Sub F.A.O.No.11 of 2020 4 Court on 07.05.2018. In the suit, the Sub Court issued summons to the defendants, returnable by 27.09.2018. On that day there was no representation for the plaintiff. The defendants entered appearance and sought time to file written statement and the Sub Court posted the suit to 27.10.2018. On that day there was no sitting and therefore, the suit was reposted to 23.11.2018. On that day no written statement was filed by the defendants. The Sub Court posted the suit to 14.12.2018 for payment of Balance Court Fee and for evidence. On that day the plaintiff sought time for payment of Balance Court Fee and for evidence and the Sub Court granted time till 19.01.2019, on condition that no further time will be granted in that behalf. On 19.01.2019 there was no sitting and therefore, the suit was reposted to 16.02.2019. On that day, there was no sitting and therefore, the suit was reposted to 21.03.2019. 6. On 21.02.2019, the plaintiff filed I.A.No.688 of 2019 in O.S.No.124 of 2018, invoking the provisions under Rule 38 of the Kerala Civil Rules of Practice, 1971, seeking an order to advance the suit to a near date. As per Rule 38, which deals with advancement of hearing, any party who desires that the hearing be advanced, may apply therefore by interlocutory F.A.O.No.11 of 2020 5 application of which notice shall be given to the other party. Admittedly, the plaintiff filed I.A.No.688 of 2019 seeking advancement of hearing in O.S.No.124 of 2018, without notice to the defendants, i.e., without serving a copy of that application to the learned counsel for the defendants. As per the endorsement made on the docket of I.A.No.688 of 2019, on 23.02.2019 the Sub Court heard the learned counsel for the plaintiff and advanced the suit to 01.03.2019. On that day, there was no sitting and therefore, the suit was reposted to 02.03.2019. 7. As evident from the proceedings paper in O.S.No.124 of 2018, on 02.03.2019 the plaintiff was present in court. The plaintiff filed affidavit in lieu of chief examination. The documents produced along with the plaint were marked as Exts.A1 to A6. Evidence was closed and the suit was posted to 12.03.2019 for hearing. On 12.03.2019, the plaintiff was represented. The court heard the arguments and posted the suit to 21.03.2019. On that day, the court decreed O.S.No.124 of 2018 with costs. In paragraph 3 of the judgment, it is stated that ‘defendants remained _ex-parte_ ’. 8. Admittedly, the plaintiff filed affidavit in lieu of chief F.A.O.No.11 of 2020 6 examination, without serving a copy of the same to the learned counsel for the defendants. The affidavit filed in lieu of chief examination, which is Sl.No.17 in the lower court records, does not even bear the seal of the Sub Court with the date of filing. On 11.04.2019, the defendants filed I.A.No.1465 of 2019 in O.S.No.124 of 2018, invoking the provisions under Order IX, Rule 13 of the Code, seeking an order to set aside the _ex-parte_ decree in O.S.No.124 of 2018. On 25.07.2019, the plaintiff filed objections, opposing the relief sought for in that application. After hearing both sides, the Sub Court dismissed I.A.No.1465 of 2019, by the impugned order dated 31.08.2019, on the ground that the application lacks bonafides. 9. On 09.08.2019, during the pendency of I.A.No.1465 of 2019, the defendants filed written statement in O.S.No.124 of 2018, along with counter claim. The defendants filed I.A.No.2574 of 2019, invoking the provisions under Sections 148 and 151 of the Code, seeking an order to accept on file that written statement, along with counter claim. In view of the dismissal of I.A.No.1465 of 2019, the Sub Court by a separate order dated 31.08.2019 dismissed I.A.No.2574 of 2019. 10. The learned counsel for the respondent-plaintiff F.A.O.No.11 of 2020 7 would contend that, since the defendants were set _ex-parte_ on 23.11.2018, the plaintiff cannot be found fault with in filing I.A.No.688 of 2019 on 21.02.2019, without serving a copy of the same to the learned counsel for the defendants. For the very same reason, the plaintiff cannot be found fault with in not serving a copy of the affidavit filed in lieu of chief examination, on the learned counsel for the defendants. Per contra, the learned counsel for the appellants-defendants would contend that, merely for the reason that the defendants failed to file written statement on 23.11.2018, they cannot be set _ex-_ parte, in view of the provisions under Order VIII Rule 10 of the Code. Further, the plaintiff ought to have filed I.A.No.688 of 2019, seeking an order to advance the suit to a near date, with notice to the learned counsel for the defendants, as provided under Rule 38 of the Kerala Civil Rules of Practice. Therefore, the court below went wrong in rejecting I.A.No.1465 of 2019 filed by the defendants to set aside the _ex-parte_ decree, by the impugned order dated 31.08.2019. 11. Order VIII of the Code of Civil Procedure deals with written statement, set-off and counter-claim. Order VIII, Rule 1 deals with written statement. Rule 1, after its substitution by F.A.O.No.11 of 2020 8 Section 9 of the Code of Civil Procedure (Amendment) Act, 2002 provides that, the defendant shall, within thirty days from the date of receipt of summons on him, present a written statement of his defence. As per the proviso to Rule 1, where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons. 12. Order VIII, Rule 5 of the Code deals with specific denial. As per sub-rule (1) of Rule 5, every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under a disability. As per the proviso to sub-rule (1), the court may in its discretion require any fact so admitted to be proved otherwise than by such admission. As per sub-rule (2) of Rule 5, where the defendant has not filed a pleading, it shall be lawful for the court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the court may, in its discretion, require any such F.A.O.No.11 of 2020 9 fact to be proved. As per sub-rule (3) of Rule 5, in exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader. As per subrule (4) of Rule 5, whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced. 13. Order VIII, Rule 9 of the Code deals with subsequent pleadings. Rule 9, after its substitution by Section 9 of the Code of Civil Procedure (Amendment) Act, 2002 provides that, no pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the court and upon such terms as the court thinks fit; but the court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same. 14. Order VIII, Rule 10 of the Code deals with procedure when party fails to present written statement called for by court. Rule 10, after its substitution by Section 9 of the Code of F.A.O.No.11 of 2020 10 Civil Procedure (Amendment) Act, 2002 provides that, where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the court, as the case may be, the court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up. 15. In **Kailash v. Nanhku [(2005) 4 SCC 480]** the Apex Court held that the purpose of providing the time schedule for filing the written statement under Order VIII, Rule 1 of the Code of Civil Procedure is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the court to extend the time. Though the language of the proviso to Order VIII, Rule 1 of the Code is couched in negative form, it does not specify any penal consequences flowing from the noncompliance. The provision being in the domain of the procedural law, it has to be held directory and not mandatory. The power of the court to extend time for filing the written statement beyond the time schedule provided by Order VIII, Rule 1 of the Code is not completely taken away. F.A.O.No.11 of 2020 11 16. In **C.N. Ramappa Gowda v. C.C. Chandregowda (dead) by Lrs. [(2012) 5 SCC 265]** , a decision relied on by the learned counsel for the appellants-defendants, the Apex Court reiterated that, it is the purpose of the procedure contemplated under Order VIII, Rule 10 of the Code of Civil Procedure, upon non-filing of the written statement, to expedite the trial of the suit, and not penalise the defendant for nonfiling of the written statement by trying the suit in a mechanical manner by passing a decree. In a case where written statement has not been filed, the court should be a little more cautious in proceeding under Order VIII, Rule 10 of the Code and before passing a judgment, the court must ensure that even if the facts set out in the plaint are treated to have been admitted, a judgment and decree could not possibly be passed without requiring him to prove the facts pleaded in the plaint. It is only when the court for recorded reasons is fully satisfied that there is no fact which needs to be proved at the instance of the plaintiff in view of the deemed admission by the defendant, the court can conveniently pass a judgment and decree against the defendant who has not filed the written statement. But, if the plaint itself indicates that there are disputed questions of fact F.A.O.No.11 of 2020 12 involved in the case arising from the plaint itself giving rise to two versions, it would not be safe for the court to record an _exparte_ judgment without directing the plaintiff to prove the facts so as to settle the factual controversy. In that event, the _exparte_ judgment although may appear to have decided the suit expeditiously, it ultimately gives rise to several layers of appeal after appeal which ultimately compounds the delay in finally disposing of the suit giving rise to multiplicity of proceedings which hardly promotes the cause of speedy trial. However, if the court is clearly of the view that the plaintiff's case even without any evidence is prima facie unimpeachable and the defendant's approach is clearly a dilatory tactic to delay the passing of a decree, it would be justified in appropriate cases to pass even an uncontested decree. What would be the nature of such a case ultimately will have to be left to the wisdom and just exercise of discretion by the trial court which is seized of the trial of the suit. 17. Order IX of the Code deals with appearance of parties and consequence of non-appearance. As per Order IX, Rule 4, where a suit is dismissed under Rule 2 [where summons not served in consequence of plaintiff’s failure to pay costs] or F.A.O.No.11 of 2020 13 Rule 3 [where neither party appears] the plaintiff may, subject to the law of limitation, bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient cause for such failure as it is referred to in Rule 2, or for his non-appearance, as the case may be, the court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit. 18. In **Girija H.@ Girija Srinivasan v. Anandalakshmi and others [2019 (5) KHC 863]** , a decision relied on by the learned counsel for the respondent-plaintiff, this Court held that, in an application filed under Order IX, Rule 4 of the Code of Civil Procedure, notice to the _ex-parte_ defendants is not mandatory. However, if the application is filed under Order IX, Rule 9 of the Code, notice is mandatory to the contesting party and not to the defendants who had already been declared as _ex-parte_ . After having been declared _ex parte_ , the defendants cannot have any right to being heard in the normal process of the judicial proceedings thereafter in the suit, unless a right to oppose arises by way of limitation. 19. In the instant case, as evident from the proceedings paper in O.S.No.124 of 2018, the defendant did not file written F.A.O.No.11 of 2020 14 statement within the time limit fixed by the court below. On 23.11.2018, it was noticed that no written statement is filed by the defendants. Therefore, the court below posted the suit to 14.12.2018 for payment of Balance Court Fee and for evidence. Though the plaintiff and the defendants proceeded with the matter as if the defendants were set _ex-parte_ on 23.11.2018 for not filing written statement, the said fact is not discernible from the proceedings paper in O.S.No.124 of 2018. Merely for the reason that the defendants failed to file written statement, they cannot be set _ex-parte_ , in view of the provisions under Order VIII Rule 10 of the Code. Similarly, the defendants cannot be penalised for non-filing of written statement by trying the suit in a mechanical manner by passing a decree. In view of the provisions of the Code referred to hereinbefore and also the law laid down in the decisions referred to supra, the procedure adopted by the court below while decreeing O.S.No.124 of 2018 ex-parte cannot be legally sustained. The procedure adopted by the court below while advancing the suit to a near date based on I.A.No.688 of 2019 filed by the plaintiff is _per se_ arbitrary and patently illegal, since that application filed under Rule 38 of the Kerala Civil Rules of Practice was moved without notice to F.A.O.No.11 of 2020 15 the defendants. 20. In the above circumstances, we find no reason to sustain the impugned order dated 31.08.2019 of the Sub Court in dismissing I.A.No.1465 of 2019 filed by the defendants, seeking an order to set aside the _ex-parte_ decree in O.S.No.124 of 2018. The Court below has also dismissed I.A.No.2574 of 2019 filed by the defendants seeking an order to accept on file the written statement in O.S.No.124 of 2018, along with counter claim, in view of the dismissal of I.A.No.1465 of 2019. Since we have already found no reason to sustain the order in I.A.No.1465 of 2019, the court below has to reconsider I.A.No.2574 of 2019, in accordance with law, and pass appropriate orders thereon, with notice to both sides. In the result, this appeal is allowed by setting aside the order dated 31.08.2019 of the Second Additional Sub Court, Thrissur in I.A.No.1465 of 2019 in O.S.No.124 of 2018 and that application is allowed by setting aside the _ex-parte_ decree in O.S.No.124 of 2018. As a consequence, the order of the Sub Court rejecting I.A.No.2574 of 2019 is also set aside and the Sub Court is directed to reconsider that application, in accordance with law, and pass appropriate orders thereon, with F.A.O.No.11 of 2020 16 notice to both sides, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment. Registry to return LCR by messenger. **Sd/ANIL K. NARENDRAN JUDGE Sd/M.R. ANITHA JUDGE** shg F.A.O.No.11 of 2020 17 ## **APPENDIX OF FAO 11/2020** **PETITIONER ANNEXURE ANNEXURE A1** **TRUE COPY OF THE AGREEMENT DATED 4.5.2017 ENTERED INTO BETWEEN THE APPELLANTS AND THE RESPONDENT WITH REGARD TO THE PURCHASE OF THE PROPERTY IN QUESTION FOR AN AMOUNT OF RS.1,20,00,000/- CONTAINING THE COUNTER SIGNATURE OF THE BANK (STATE BANK OF INDIA, EAST FORT BRANCH, THRISSUR) STATING THAT THE ORIGINAL HAD BEEN DEPOSITED WITH THE BANK.** ## **ANNEXURE A2** **TRUE COPY OF THE SALE DEED DATED 21.7.2017 EXECUTED BETWEEN THE APPELLANTS AND THE RESPONDENT BY WHICH THE PROPERTY IN QUESTION HAS BEEN CONVEYED TO THE APPELLANT.** **ANNEXURE A3 TRUE COPY OF THE OS NO.124/2018 FILED BY THE RESPONDENT. ANNEXURE A4 TRUE COPY OF THE SUMMONS INTIMATING THE HEARING DATE OF THE CASE AS 27.9.2018. ANNEXURE A5 TRUE COPY OF THE MEDICAL CERTIFICATE SHOWING THE ADMISSION AND DISCHARGE OF THE 1ST APPELLANT'S DAUGHTER.** **ANNEXURE A6 TRUE COPY OF THE WRITTEN STATEMENT AND THE COUNTER CLAIM.** - **ANNEXURE A7 TRUE COPY OF THE IA NO.1465/2019 ALONG WITH AFFIDAVIT FOR SETTING ASIDE THE EX-PARTE DECREE AND JUDGMENT.** - **ANNEXURE A8 TRUE COPY OF THE EX-PARTE JUDGMENT DATED 21.3.2019 IN OS NO.124/2018, ON THE FILE OF THE SECOND ADDITIONAL SUB COURT, THRISSUR.** - **ANNEXURE A9 TRUE COPY OF THE DECREE DATED 21.3.2019 IN OS NO.124/2018, ON THE FILE OF THE SECOND ADDITIONAL SUB COURT, THRISSUR.** - **ANNEXURE A10 CERTIFIED COPY OF THE ORDER DATED 31.8.2019 DISMISSING THE PETITION (IA NO.1465/2019) OF THE APPELLANTS FOR SETTING ASIDE THE EX-PARTE DECREE AND JUDGMENT.** **ANNEXURE A11 TRUE COPY OF THE IMPUGNED AGREEMENT DATED 21.7.2017.**