Sujath Shah v. Thankappan L and Others

WP(C) NO. 8949 OF 2010 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 26[TH] DAY OF OCTOBER 2022 / 4TH KARTHIKA, 1944 WP(C) NO. 8949 OF 2010** **AGAINST THE ORDER/JUDGMENT IN CMA 67/2009 OF I ADDITIONAL DISTRICT COURT & I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM** **OS 228/1996 OF MUNSIFF - MAGISTRATE COURT, PARAVOOR** ## **PETITIONER/S:** SUJATH SHAH, S/OABDUL RAHIMAN AGED 40 YEARS,HAVING COME DOWN TO NOUSHAD MANZIL,, NEAR KIZHAKKUMKARA, MEENAD VILLAGE, CHATHANNUR PO,, KOLLAM AND NOW RESIDING AND DOING BUSINESS AT, 5E JALAN KEMAMAN, JOHOR BAHRU, MALAYSIA. BY ADVS. SRI.E.K.NANDAKUMAR SRI.P.BENNY THOMAS SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN ## **RESPONDENT/S:** 1 THANKAPPAN.L, S/OPADMANABHAN, AGE 66 YEARS, BUSINESS, RESIDING AT, PATTARAZHIKATHU VEEDU, THAZHAM, CHATHANNUR. 2 SAROJAM THANKAPPAN DO.LEKSHMI AGED 56 YEARS, HOUSE WIFE, RESIDING AT, PATTARAZHIKATHU VEEDU, THAZHAM, CHATHANNUR. 3 P.BHASKARAN SON OF PADMANABHAN RETIRED GOVERNMENT SERVANT, GANGA SADAN, ERAM,, CHATHANNUR (DIED). WP(C) NO. 8949 OF 2010 2 - 4 ABDUL RAHIMAN SON OF MOHAMMED KUNJU NOUSHAD MANZHIL, KIZHAKKUMKARA, MEENADU CHERRY, (DIED). - 5 HAVVA BEEVI DO.MOHAMMED KHASIM AGED 62 YEARS, HOUSE WIFE, RESIDING AT NOUSHAD MANZIL, KIZHAKKUMKARA, MEENADU CHERRY,, NEDUNGOLAM POST. - 6 STATE OF KERALA REP.BY DISTRICT COLLECTOR, KOLLAM. - 7 ASSISTANT DIRECTOR (RE-SURVEY) OFFICE OF THE RE-SURVEY, KOLLAM. - 8 SUPERINTENDENT OF SURVEY AND LAND RECORDS, OFFICE OF THE SUPERINTENDENT OF SURVEY & LAND RECORDS, KOLLAM. - 9 NOUSHAD SO.ABDUL RAHMAN NOUSHAD MANZIL, KIZHAKKUMKARA, MEENADU CHERRY,, NEDUNGOLAM POST. - 10 AMARSHAD SO.ABDUL RAHMAN NOUSHAD MANZIL, KIZHAKKUMKARA, MEENADU CHERRY,, NEDUNGOLAM POST. - 11 KRISHNA BHASKAR GANGA SADANAM CHATHANNUR. BY ADVS. SRI.M.AJITH (KARICODE) SRI.R.MOHANA BABU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 8949 OF 2010 3 ## **JUDGMENT** The writ petition is filed to set aside Ext.P8 common order passed in I.A.Nos.325/2009 and 331/2009 in O.S.No.228/1996 of the Court of the Munsiff, S.Paravur (Trial Court) and Ext.P10 judgment passed in CMA No.67/2009 of the Court of the First Additional District Judge, Kollam (Appellate Court). 2. The concise case of the petitioner, shorn of exhaustive pleadings, in the original petition is: the petitioner is the additional 9[th] defendant before the Trial Court which is filed by the respondents 1 and 2, interalia, to declare that they are the owners of plaint 'B' schedule property and a decree for mandatory injunction against the respondents 4 and 5 to demolish a compound wall which is put in plaint 'B' schedule property. The respondents 4 and 5 have resisted the suit by filing Ext.P2 written statement. During the pendency of the suit, the 4[th] respondent died and his legal WP(C) NO. 8949 OF 2010 4 representatives, i.e., the petitioner and respondents 9 and 10, were impleaded as additional respondents in the suit. The respondents 4, 9 and 10 are in Malaysia. The suit was being contested by the petitioner through his power of attorney holder. The suit was dismissed for default on two occasions for non-prosecution, but was restored to file. On 22.08.2007, when the suit was listed for trial, the petitioner could not attend the trial as he was hospitalized due to hepatitis. The court below set the defendants ex-parte and decreed the suit. Subsequently, I.A.Nos.1287/2007 (Ext.P3) and 1286/2007 (Ext.P4) were filed to set aside the ex-parte decree and to condone the delay in filing Ext.P3 application. When Ext.P3 application was posted for evidence, the petitioner's power of attorney was absent as his child was hospitalized. Consequentially, the Trial Court dismissed Ext.P3 application by Ext.P5 order. Then the petitioner filed I.A.No.331/2009 (Ext.P6) and I.A.No.325/2009 (Ext.P7) to restore the applications to 5 WP(C) NO. 8949 OF 2010 set aside the ex-parte decree and an application to condone the delay of 65 days in filing Ext.P6 application. The Court below, by the impugned Ext.P8 common order dismissed Exts.P6 and P7 applications. Aggrieved by Ext.P8 common order, the petitioner filed CMA No.67/2009 before the Appellate Court. The Appellate Court, by the impugned Ext.P10 judgment, dismissed the appeal and confirmed Ext.P8 common order. Exts.P8 and P10 are illegal and erroneous. Hence the writ petition. 3. Heard; Sri.Gopikrishnan Nambiar, the learned counsel appearing for the petitioner and Sri.R.Mohana Babu, the learned counsel appearing for the respondents. 4. The point is whether there is any error or illegality in Exts.P8 and P10. 5. On an analysis of the pleadings and materials on record, it can be gathered that the petitioner was set ex- 6 WP(C) NO. 8949 OF 2010 parte and he filed Exts.P3 and P4 applications to set aside the ex-parte decree and to condone the delay in filing Ext.P3 application. Due to the absence of the petitioner's power of attorney holder, the applications were dismissed by Ext.P5 order. To restore Exts.P3 and P4 applications, the petitioner filed Ext.P6 application with Ext.P7 application to condone the delay of 65 days in filing Ext.P6. The court below, by the impugned Ext.P8 order, dismissed the applications disbelieving the version that the child of the petitioner's power of attorney holder was hospitalized. 6. The Trial Court has observed that the power of attorney holder ought to have made alternative arrangements and gone to the court and attended the hearing. Furthermore, the petitioner has not explained the delay properly. Even though the petitioner preferred CMA No.67/2009, the Appellate Court confirmed the findings of the Trial Court and dismissed the appeal. WP(C) NO. 8949 OF 2010 7 7. In **G.P. Srivastava v. R.K.Raizada & Others** [2000 KHC 1023] the Hon'ble Supreme Court has held that the crucial aspect to be considered in an application filed under Order IX of the Code of Civil Procedure (Code) is whether the defendant has made out 'sufficient cause' for his non- appearance on the date the case was posted. The court is not bound to look into the antecedents of the defendant against whom an ex parte order/decree is passed. 8. On a perusal of the averments in Exts.P3 and P4 applications, it is seen that the petitioner had stated that he was set ex-parte for the reason that he was laid up due to hepatitis. When those applications were posted for evidence, his power of attorney holder's child got afflicted and was hospitalised. Accordingly, Exts.P3 and P4 were dismissed and the petitioner filed Exts.P6 and P7 applications. Nevertheless, the court below disbelieved the version of the petitioner and dismissed WP(C) NO. 8949 OF 2010 8 the said applications. 9. In **G.P.Srivastava** (supra), the Hon'ble Supreme Court has emphathetically held that 'sufficient cause' contemplated under Order IX of the Code has to be liberally construed, so as to enable the Court to do complete justice between the parties. The term 'sufficient cause' is an elastic expression for which there is no hard and fast rule. The Court is to be given a wide discretion in deciding what is 'sufficient case'. 10. In **Robin Thapa v. Rohit Dora** [2019 KHC 6641], the Hon'ble Supreme Court has held that, ordinarily a litigation is based on adjudication on the merit of the contention of the parties and litigation may not be terminated by default of either the plaintiff or the defendant. The cause of justice does require that, as far as possible, adjudication be done on merits. 11. In the light of the pleadings and averments in WP(C) NO. 8949 OF 2010 9 Exts.P3, P4, P6 and P7, I am of the definite view that the delay in filing the application to set aside the ex-parte decree as well as the application to set aside the ex-parte decree have to be liberally considered and the petitioner be given an opportunity to contest the case on merits. Both the courts have taken a hyper-technical stand and dismissed the application. According to me, the prejudice caused to the respondents can be compensated by directing the petitioner to pay a reasonable amount as cost. Even though I do not approve the attitude of the petitioner in protracting the determination of the suit, I am of the view that the matter can be given a quietus, especially taking note of the fact that the suit is of the year 1996 and there was no inordinate delay in filing Ext.P3 application, by directing the court below to consider and dispose of the suit within a time frame. 12. On a comprehensive consideration of the pleadings and materials on record, the law laid down in WP(C) NO. 8949 OF 2010 10 the afore-cited decisions, I am inclined to exercise the supervisory powers of this Court under Article 227 of the Constitution of India and set aside Exts.P8 and P10 order and judgment, respectively, subject to the following conditions: - (i) Ext.P8 order of the Trial Court and Ext.P10 judgment of the Appellate Court will stand set aside on condition that the petitioner deposits an amount of Rs.10,000/- as cost before the Trial Court, within two weeks from the date of receipt of a certified copy of the judgment. - (ii) If condition No.(i) is complied with, the parties are directed to appear before the Trial Court on - 28.11.2022, and the deposited amount shall be released to the respondents 1 and 2. - (iii) On a consideration of the fact that the suit is of the year 1996, the Trial Court shall make every WP(C) NO. 8949 OF 2010 11 endeavour to dispose of Exts.P3 and P4 applications in accordance with law, as expeditiously as possible, at any rate within a period of two months from 28.11.2022. - (iv) Needless to mention, if the petitioner fails to deposit the amount, Exts.P8 and P10 will stand confirmed. - (v) The Registry is directed to communicate a copy of the judgment to the Trial Court. The writ petition is disposed of accordingly. Sd/- **C.S.DIAS, JUDGE** rkc/26.10.22 WP(C) NO. 8949 OF 2010 12 ## **APPENDIX** **PETITIONER'S EXHIBITS** **EXT.P1: TRUE COPY OF THE PLAINT FILED BY RESPONDENTS 1 AND 2 BEFORE THE MUNSIFF'S COURT, PARAVOOR AS OS NO.228/1996 DT.14.10.96** **EXT.P2: TRUE COPY OF THE WRITTEN STATEMENT FILED BY RESPONDENTS 4 AND 5 IN OS 228/1996 BEFORE THE MUNSIFF'S COURT, PARAVOOR DT.24.7.97** **EXT.P3: TRUE COPY OF IA 1287/07 IN OS 228/96 (APPLICATION TO SET ASIDE THE EXPARTE DECREE) FILED BEFORE MUNSIFFMAGISTRATE'S COURT, SOUTH PARAVOOR DT.6.10.07** **EXT.P4: TRUE COPY OF THE ORDER DT.17.06.08 IN IA 1286/07 IN OS 228/96 FILED BY PETITIONER'S** **EXT.P5: TRUE COPY OF ORDER DT.25.11.08 IN EXT.P3 APPLICATION IE. IA 1287/07 IN OS 228/96 FILED BY THE PETITIONER** **EXT.P6: TRUE COPY OF IA 331/09 IN OS 228/96 DT.28.2.09 ALONG WITH AFFIDAVIT FILED BY THE PETITIONER** **EXT.P7: TRUE COPY OF THE PETITION TO CONDONE THE DELAY IN FILING EXT.P6 (IA 325/09 IN OS 228/96 DT.28.2.09** **EXT.P8: TRUE COPY OF THE COMMON ORDER IN IA NO.325/09 AND** WP(C) NO. 8949 OF 2010 13 **331/09 IN OS 228/96 DT.30.07.09** **EXT.P9: TRUE COPY OF CMA 67/09 DT.10.8.09 FILED BEFORE TEH DISTRICT COURT, KOLLAM** **EXT.P10: TRUE COPY OF THE JUDGMENT DT.8.12.09 IN CMA 67/09 OF THE DISTRICT COUT, KOLLAM** **EXT.P11: TRUE COPY OF THE EXPARTE DECREE PASSED BY THE MUNSIFF-MAGISTRATE COURT, SOUTH PARAVOOR IN OS 228/96** **EXT.P12: TRUE COPY OF EXECUTION PETITION DT.11.3.09 IE. EP NO.12/09 IN OS 228/96 BEFORE THE MUNSIFF-MAGISTRATE COURT, PARAVAOOR**