Thobiyas v. Thresiamma and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 WP(C).No. 4894 of 2010(O) ------------------------CMA.11/2005 of SUB COURT, CHERTHALA OS.108/1998 of ADDL.MUNSIFF COURT,CHERTHALA .................... PETITIONER(S): --------------- THOBIYAS, S/O.ANTONY, KAITHAVANATHARA, EZHUPUNNA SOUTH, KODAMTHURUTHU VILLAGE. BY ADV. SRI.JOBY CYRIAC RESPONDENT(S): --------------- 1. THRESIAMMA, KAKKASSERIL, PALLITHODU BHAGOM, KUTHIATHODU VILLAGE. 2. SIMON CALLED AS BABY, OLIPPARAMBIL, EZHUPUNNA SOUTH MURI, KODAMTHURUTHU VILLAGE. 3. EBIN SIMON, OLIPPARAMBIL, EZHUPUNNA SOUTH MURI, KODAMTHURUTHU VILLAGE. ADV. SRI.ROY CHACKO FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) No.4894/2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** EXT.P1 - TRUE COPY OF ORDER IN IA NO.1885/2003 DATED 31.1.2005 EXT.P2 - TRUE COPY OF THE ORDER IN CMA NO.11/2005 DATED 23.12.2009 RESPONDENTS' EXHIBITS: EXT.R1(a) TRUE COPY OF THE JUDGMENT IN OS NO.108/98 DATED 28/10/2002 EXT.R1(b) TRUE COPY OF THE AFFIDAVIT FILED IN JUNE, 2003 IN SUPPORT OF IA NO.1885/2003 BY THE WRIT PETITIONER BEFORE THE TRIAL COURT EXT.R1(c) TRUE COPY OF THE IA NO.1885/2003 FILED IN JUNE, 2003 BY THE WRIT PETITIONER BEFORE THE TRIAL COURT EXT.R1(d) TRUE COPY OF THE OBJECTION DATED 16.9.2003 FILED BY THE FIRST RESPONDENT EXT.R1(e) TRUE COPY OF THE AFFIDAVIT FILED BY THE WRIT PETITIONER AS PW1 //TRUE COPY// ## **THOMAS P. JOSEPH, J.** **-------------------------------------W.P.(C) No.4894 of 2010 -------------------------------------Dated this the 18[th] day of May, 2010.** ## **JUDGMENT** Defendant No.2 in O.S.No.108 of 1998 of the court of learned Additional Munsiff, Cherthala has come to this Court requesting to invoke its jurisdiction under Article 227 of the Constitution. O.S.No.108 of 1998 as originally instituted was one for prohibitory injunction to restrain the defendants from trespassing into the suit property - 41 cents over which respondent No.1/plaintiff claimed title and possession as per a settlement deed dated 01.10.1993 executed by her father, late Leon. Defendant Nos.1 and 2 filed joint written statement on 7.3.1998 claiming that the settlement deed relied on by respondent No.1/plaintiff was cancelled by the said Leon as per a registered document dated 18.03.1994 and thereafter Leon executed assignment deed in favour of petitioner/defendant No.2 in respect of 8.87 cents out of the said 41 cents. Defendant Nos.1 and 2 claimed that the said 8.87 cents is in the possession and enjoyment of petitioner/defendant No.2. It was contended that petitioner/defendant No.2 is residing in the building in the said 8.87 cents and that in view of the cancellation deed, respondent No.1/plaintiff has no claim of title or possession over the said 8.87 cents. It was also contended that in the year 1996, Leon had executed another settlement deed in respect of the remaining property in favour of additional defendant No.3, son of defendant No.1. Obviously pursuant to the written statement filed by defendant Nos.1 and 2 respondent No.1/plaintiff **WP(C) No.4894/2010** 2 amended the plaint to incorporate the prayer for cancellation of the cancellation deed dated 18.03.1994 and the documents executed by Leon subsequent to the said cancellation deed and also for mandatory injunction to direct petitioner/defendant No.2 to demolish the building in the 8.87 cents over which he claimed title and possession as per sale deed executed by the late Leon. The case was posted for trial in the list on 14.09.2001. That day, defendants including petitioner/defendant No.2 remained absent. But, it was noticed that additional defendant No.3 who is a minor was not represented by a guardian and hence steps were taken for appointment of a court guardian. The court guardian filed written statement on behalf of additional defendant No.3. Case was then taken up for hearing on 09.10.2002 and then on 28.10.2002. On those dates also defendants including petitioner remained absent. Though it is not admitted by learned counsel for respondent No.1/plaintiff, as the version of petitioner goes his counsel reported ' no instruction' on his behalf and he was set exparte followed by a exparte decree on 28.10.2002. On 17.06.2003, ie. 199 days after the prescribed time petitioner/defendant No.2 filed I.A.No.1885 of 2003 to set aside the exparte decree. That application was accompanied by an application to condone the delay as well. Reason stated for delay is that after the petitioner and defendant No.1 filed additional written statement consequent to the amendment of the plaint, the counsel appearing for petitioner and defendant No.1 had told them that they will be informed when the case is taken up for trial but no such information was given to the petitioner or defendant No.1. While so on 16.06.2003 petitioner approached his counsel and learnt about the **WP(C) No.4894/2010** 3 exparte decree on 28.10.2002. Immediately he filed the petition on 17.06.2003 as aforesaid to set aside the exparte decree. That application was opposed by respondent No.1/plaintiff stating that the reason for condonation of delay and setting aside exparte decree are totally incorrect and that it is incorrect to say that on 14.09.2001 when the case was listed for trial counsel for petitioner reported 'no instruction' on his behalf. According to respondent No.1/plaintiff there was contumacious negligence and delay on the part of petitioner in conducting the suit which resulted in the exparte decree. Petitioner gave evidence as PW1. No contra evidence was adduced by respondent No.1/plaintiff. Learned Munsiff was not satisfied with the reason stated, held that there was no sufficient cause made out to condone the delay and to set aside the exparte decree. Consequence was the dismissal of the application vide Ext.P1, order dated 31.01.2005. Petitioner/defendant No.2 carried the matter in C.M.A.No.11 of 2005. That appeal was preferred on 15.03.2005 and confirming Ext.P1, order learned Sub Judge dismissed Civil Miscellaneous Appeal on 23.12.2009 as per Ext.P2, judgment. Ext.P1 and P2 are under challenge in this Writ Petition. Learned counsel for petitioner contends that learned Sub Judge has made a wrong approach to the request made by the petitioner for condonation of delay and to set aside the exparte decree. It is contended that sufficient cause was shown but, the facts and circumstances leading to the exparte decree were not properly considered and appreciated by the appellate court. Learned counsel contends that before counsel for petitioner in the trial court reported 'no instruction', no intimation was given to the petitioner either by **WP(C) No.4894/2010** 4 counsel concerned or from the court and hence petitioner had no information abut the counsel reporting no instruction. Reliance is placed on the decision of ## the Apex Court in **Malkiat Singh and another v. Joginder Singh and** **others [(1998) 2 SCC 206)** . It is the contention of learned counsel that petitioner having invested for the purchase of 8.87 cents as per the impugned sale deed cannot be expected to have remained idle when that right was attempted to be taken away by respondent No.1/plaintiff. Learned counsel for respondent No.1/plaintiff contended that by any stretch of imagination the ground stated by petitioner could be taken as that 'sufficient cause' sufficient to condone the delay and set aside the exparte decree. Learned counsel contends that neither in the affidavit and in the applications to condone the delay and to set aside exparte decree nor in the proof affidavit filed by petitioner there is any reference that before the counsel reported 'no instruction' on his behalf, no intimation was given to him. Learned counsel contends that in and every circumstances the decision relied on by the learned counsel cannot be applied, a decision is authority for the facts it decides and that the said decision has been distinguished by a Division Bench of this Court in **Deepak** ## **v. George Philip (2006 (4) KLT 369)** . 2. Order 9 Rule 13 of the Code of Civil Procedure (for short, “the Code”) permits the court to set aside exparte decree if sufficient cause is shown. Similar expression is given in Section 5 of the Limitation Act also in the matter of condonation of delay. The word 'sufficient' means 'adequate, effective, sufficient **WP(C) No.4894/2010** 5 quantity, enough' while the word 'cause' means that which produces an effect, by or through which anything happens a motive, an inducement, etc. Binding authorities on the point say that in considering whether a litigant had sufficient cause in not preferring the petitions on time courts have to take a liberal attitude keeping in mind the brooding spirit of law to deliver justice. V.R.Krishna Iyer, J. in **Sreedhara Kurup v. Mickel (1968 KLT 599)** though while dealing with an application for restoration under Order 9 Rule 9 of the Code has alerted the courts below in the following words: “The touch-stone in a case under O.9, R.9 CPC. is the presence of 'sufficient cause' for nonappearance when the suit was called on for hearing. If there is no sufficient cause the court cannot restore the suit as a matter of grace. On the other hand, it has always to be remembered that the broad principle of natural justice that informs our judicial institution is that a litigant should not be deprived of a hearing unless there has been something equivalent to misconduct or gross negligence on his part. It is largely a matter of wise discretion to be exercised by the Court bearing in mind the wholesome principle that the right of a party to be heard should be negatived only if there is gross negligence or gross carelessness and that if some steps have been taken and application for restoration has been made with some diligence and some evidence adduced making out a sufficient cause for absence, restoration should be ordered, minor **WP(C) No.4894/2010** 6 misconduct or laches being corrected by the common curative of costs. The brooding spirit of natural justice must be in the background while ascertaining whether there is sufficient cause. A strict and narrow construction defeats the ends of justice which can be reached only after a fair fight between the disputants.” I shall consider, bearing in mind the above principle whether sufficient cause has been shown by the petitioner for condonation of delay and for setting aside the exparte decree. 3. It cannot be disputed that claim of respondent No.1/plaintiff was vehementally contested by petitioner/defendant No.2 in that without loosing time he filed written statement to the plaint and following the amendment of the plaint, he filed additional written statement also taking suitable contentions. It is seen from Ext.P1, order that when the case was taken up on 14.09.2001 it was revealed that additional defendant No.3 was not represented by a guardian and thereafter, steps were taken for rectifying that defect. Case was then posted to 09.10.2002 and then on 28.10.2002. It is true that in the affidavit in support of the application to set aside the exparte decree or, in the proof affidavit petitioner has not stated in so many words that before reporting 'no instruction' his counsel had not given intimation. But, he has stated in the affidavit as well as in the proof affidavit that after the additional written statement in answer to the amended plaint was filed his counsel had told him that he will be informed when the case **WP(C) No.4894/2010** 7 is posted for trial in the list but, no information was received from the counsel and he learnt about the exparte decree only when he met the counsel on 16.06.2003. Hence, merely for the reason that it is not so specifically stated that before reporting 'no instruction' the counsel has not intimated the petitioner/defendant No.2 I am unable to find holes in the case pleaded by the petitioner. When he says that after the filing of the additional written statement and till 16.6.2003 the counsel had not given him any intimation it follows that before reporting 'no instruction' on 28.10.2002 the counsel, according to the petitioner had not given any intimation. The decision of the Supreme Court relied on by learned counsel states that before reporting 'no instruction', the counsel has to inform the client. It also refers to the responsibility of the court to issue notice to the party concerned. No doubt, such a procedure may not be possible in every cases as highlighted in Deepak v. George Philip's case (supra). But that case can be distinguished on facts as revealed from the statement of facts in page No.370. That was a case where a settlement was suggested in the presence of the defendant and thereafter he remained absent. In the circumstances the decision in Deepak v. George Philip (supra) has no application. 4. There is evidence of petitioner regarding reporting of 'no instruction' on his behalf. One argument that the learned counsel for respondent No.1/plaintiff advanced is that as pointed out by the learned Sub Judge in Ext.P2, judgment none of the records would show that the counsel had reported 'no instruction' on behalf of the petitioner/defendant No.2. But, I am afraid that **WP(C) No.4894/2010** 8 view of the appellate court cannot be accepted since learned Munsiff before whom “no instruction” was reported has stated in Ext.P1, order that the counsel for petitioner had reported 'no instruction' on behalf of petitioner. That statement of the learned Munsiff finds a place in Ext.P1. Therefore, even if other records do not reveal that counsel for petitioner had reported “no instruction”, in the light of what the leaned Munsiff has stated in Ext.P1 I have to accept the version of petitioner that he was not intimated about “no instruction” being reported by counsel on his behalf. 5. Now the question is whether the above circumstances are sufficient to bring the case within the expression 'sufficient cause'. Here is a case where by the amendment, respondent No.1/plaintiff is attempting to take away the valuable right the petitioner acquired over the 8.87 cents as per sale deed executed by late Leon though it is subsequent to the settlement deed in favour of the petitioner/defendant No.2 (and cancellation deed executed by him). Question whether Leon was competent to cancel the settlement deed in favour of respondent No.1 as per the cancellation deed and whether petitioner/defendant No.2 and additional defendant No.3 have acquired any right over the properties claimed by them are matters to be decided at the appropriate stage. I am not inclined to think that in such a situation petitioner would try to be a silent spectator to respondent No.1/plaintiff going away with the valuable property belonging to him consequent to the exparte decree. Having regard to the facts and circumstances I am persuaded to think that petitioner has made out sufficient cause to condone the delay and to set aside **WP(C) No.4894/2010** 9 the exparte decree. 6. So far as the issue regarding condonation of delay under Section 5 of the Limitation Act even when sufficient cause is shown is concerned, court has to exercise discretion whether the delay has to be condoned. Here is a where the exparte decree was for no fault of respondent No.1/plaintiff. Though for no fault of either parties it took seven (7) years to the courts below to dispose of the application for setting aside the exparte decree and the appeal arising therefrom. It is unfortunate that for the said purpose parties had to wait in the corridors of the court for about seven (7) years. At any rate there was no fault on the part of respondent No.1/plaintiff. While exercising discretion in favour of petitioner, plight of respondent No.1/plaintiff who obtained decree in her favour in the year 2002 and which is sought to be set aside in the year 2010 cannot be forgotten. Having regard to the facts and circumstances of the case I am persuaded to think that the petition can be allowed on terms of cost which considering the facts and circumstances is fixed as Rs.12,000/- (Rupees Twelve thousand only). 7. Yet another situation emerging for consideration is that though petition to set aside exparte decree is filed only by petitioner/defendant No.2 the decree as against defendant No.1 and additional defendant No.3 cannot be kept intact for the reason that they have not come to set aside the exparte decree, the reason being that right claimed by additional defendant No.3 depends on validity of cancellation deed. The decree is joint between petitioner and defendant No.1 and additional defendant No.3 and hence, the **WP(C) No.4894/2010** 10 decree as against petitioner/defendant No.2 alone cannot be set aside. Resultantly, this Writ Petition is allowed, Exts.P1 and P2 orders are set aside and I.A.No.1885 of 2003 and C.M.A.No.11 of 2005 will stand allowed on condition that petitioner deposits in the trial court for payment to respondent No.1/plaintiff Rs.12,000/- (Rupees Twelve thousand only) as cost within one month from this day. In case of non-compliance this Writ Petition will stand dismissed in confirmation of Exts.P1 and P2 . On compliance of the condition above stated, the learned Munsiff shall proceed with the trial of the suit after giving opportunity to both sides to adduce evidence. Learned Munsiff is directed to expedite the trial and disposal of the suit. I.A.No.2275 of 2010 will stand closed. **THOMAS P.JOSEPH, Judge.** **cks**