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High Court of KeralaDivision BenchAppeal allowed; impugned order set aside; I.A.4...

VELAYUDHAN v. BHANUMATHI and others

Case / Petition Number:F.A.O.No.32 of 2022

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • ANIL K. NARENDRAN
  • P.G. AJITHKUMAR
Judgment Date
2022-03-25
Court Decision / Holding
Appeal allowed; impugned order set aside. I.A.No.49 of 2018 in O.S.No.96 of 2016 (or 2018 as per the document) is permitted to be restored; the Sub Court, Chavakkad shall restore the suit on file and proceed with it in accordance with law.
Final Disposition
Appeal allowed; impugned order set aside; I.A.49 of 2018 in O.S.No.96 of 2016 (as corrected to 2016 per order) to be restored; suit to be heard on merits in accordance with law.

Parties to the Case

Appellants / Petitioners

  • VELAYUDHAN

Respondents

  • BHANUMATHI
  • VASUMATHI
  • RAMANI
  • RAMBHA
  • GIRIJA
  • SURESH
  • VIJAYAN
  • VIMALA
  • JAYA PRIYAN
  • MAHESARAN
  • DHANESWARAN
  • RAMBHA GIREESAN
  • DINESWARAN
  • ANANDHAN

Legal Representation & Advocates

Counsels for Petitioners

  • • R.GOPAN
  • • P.M.FAREETHA BANU
  • • SHAJIN S.HAMEED

Counsels for Respondents

  • • T.K.ASOKAN (Therlli)

Case Synopsis & Summary

This is an appeal under Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908, challenging the order dated 24.02.2020 in I.A.49 of 2018 in O.S.96 of 2016 (as clarified by the court’s corrigendum) on the file of the Sub Court, Chavakkad, in a suit for partition. The appellant, Velayudhan, contends that the ex parte decree dated 23.09.2017 was passed only because the defendants failed to file written statements; the appellant could not meet his counsel due to unavoidable circumstances. He filed I.A.49 of 2018 within the prescribed period seeking to set aside the ex parte decree, arguing there was no negligence or mala fide and that restoration would allow adjudication on merits. The Sub Judge held that there was no bona fides in filing the application and dismissed the request to set aside. The High Court, citing Robin Thapa v. Rohit Dora, Peeves Enterprises v. Muhammed Ashraf, and Shivananda M. v. M. Susheela, held that when there is no negligence or inaction and the application is within time, the court should ordinarily restore the case to merits. The court concluded that sufficient cause existed for setting aside the ex parte decree and that justice requires restoration of the suit for adjudication on merits. The appeal is allowed, and the impugned order is set aside with directions to restore the suit on file and proceed accordingly.

Provisions of Law Cited

Code of Civil Procedure, 1908, Order XLIII, Rule 1(d)Code of Civil Procedure, 1908, Order IX, Rule 13

Legal Doctrines & Maxims

  • Litigation should ordinarily be decided on merits; default should not terminate litigation (Robin Thapa v. Rohit Dora)
  • Sufficient cause for non-appearance on the date fixed for hearing (as discussed in Shivananda M. v. M. Susheela and others)
  • Discretion to set aside ex parte decree within statutory time where no negligence or mala fides are shown; compensation by costs may be appropriate (Peeves Enterprises v Muhammed Ashraf)
  • Restoration of the suit to enable decision on merits when supporting conditions are met (G.P. Srivastava doctrine cited)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant submits that there was unavoidable cause preventing him from obtaining his counsel’s presence to file a written statement within time. He factually contends that there was no negligence or laches on his part; upon learning of the ex parte decree, he promptly moved I.A.No.49 of 2018 within the statutory period. Since the suit was already decided ex parte, he argues that denying a chance to contest the merits would violate the principle that litigation should be decided on merits. Citing established precedents, the argument emphasizes that if no culpa can be shown and the application for setting aside is timely, the court should restore the suit to the file and decide on its merits, possibly with costs awarded to compensate the opposite party for time and inconvenience. The appellant relies on comparative jurisprudence that favors setting aside ex parte decrees where sufficient cause is shown and where no mala fide is established. The objective is to allow adjudication on merits rather than termination by default.

Contentions of Respondents

The respondents contend that the decree was rightly passed due to failure to file written statements; they rely on the statutory rules governing ex parte decrees under Order IX Rule 13 and submit that default is a ground for ex parte proceedings. They argue that the appellant’s delay and the absence of a timely written statement reflect a lack of bona fides, and that the learned Sub Judge’s conclusion was warranted. They emphasize the need to maintain procedural discipline and to protect plaintiffs’ rights when an ex parte decree has been properly entered. While acknowledging the within-time application, they contend that the court must be cautious in reclaiming the matter to merits, especially in partition suits, to avoid prejudice to the other side.

Cited Precedents (4)

Case NameCitationTreatmentExplanation
Robin Thapa v. Rohit Dora[(2019) 7 SCC 359]PositiveCited to support that ordinarily litigation should be adjudicated on merits and should not be terminated by default; thus, setting aside ex parte decrees is appropriate when merits can be examined.
Peeves Enterprises v. Muhammed Ashraf[2015 (3) KHC 981]PositiveUsed to justify that if there is no negligence or mala fide and the application is timely, the court may set aside an ex parte decree, with possible costs.
Shivananda M. v. M. Susheela and others[2021 (5) KHC 357]PositiveAffirms the principle that 'sufficient cause' for non-appearance refers to the date fixed for hearing and cannot rely on earlier negligence; discretionary relief may be granted in favourable circumstances.
G.P. SrivastavaUnknownPositiveReferenced as the doctrinal basis for the flexibility in granting relief from ex parte decrees when circumstances warrant.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 25[TH] DAY OF MARCH 2022 / 4TH CHAITHRA, 1944** **F.A.O.NO. 32 OF 2022** **AGAINST THE ORDER DATED 24.02.2020 IN I.A.NO.49 OF 2018 IN O.S.NO.96 OF 2016 ON THE FILE OF THE SUB COURT, CHAVAKKAD** ## **APPELLANT/PETITIONER:** ## **VELAYUDHAN,** **AGED 51 YEARS, S/O. UNNICHECKAN KESAVAN, MANATHALA AMSOM, THIRUVATHRA DESOM, CHAVAKKAD P. O., CHAVAKKAD TALUK, THRISSUR DISTRICT.** **BY ADVS.** **R.GOPAN** **P.M.FAREETHA BANU** **SHAJIN S.HAMEED** ## **RESPONDENTS/RESPONDENTS:** - **1 BHANUMATHI** **AGED 70 YEARS, D/O. UNNICHECKAN KESAVAN, MANATHALA AMSOM, THIRUVATHRA DESOM, CHAVAKKAD PO, CHAVAKKAD TALUK, THRISSUR DISTRICT, PIN-680 506.** - **2 VASUMATHI,** **AGED 61 YEARS, W/O. PADINJAPPURATH VASU AND D/O. UNNICHECKAN KESAVAN, MANATHALA AMSOM, THIRUVATHRA DESOM, CHAVAKKAD P. O., CHAVAKKAD TALUK, THRISSUR DISTRICT, PIN - 680 506.** - **3 RAMANI** **AGED 59 YEARS, W/O. KALATHIL SUDHAKARAN AND D/O. UNNICHECKAN KESAVAN, MANATHALA AMSOM, THIRUVATHRA DESOM, PADINJARE VEMBALLUR P. O., KODUNGALLOOR TALUK, THRISSUR DISTRICT, PIN - 680 671.** 2 F.A.O.No.32 of 2022 - **4 RAMBHA** - **AGED 56 YEARS, W/O. KIZHAKKEDATH KALAPPURAKKAL DIVAKARAN, PERINJANAM P. O., PERINJANAM WEST, THRISSUR DISTRICT, PIN - 680 686, D/O. UNNICHECKAN KESAVAN, MANATHALA AMSOM, THIRUVATHRA DESOM, CHAVAKKAD P. O., CHAVAKKAD TALUK, THRISSUR DISTRICT.** - **5 GIRIJA AGED 54 YEARS, W/O. KUZHIPPILLY GOPI, MUNAMBAM, PALLIPPURAM P. O., ERNAKULAM DISTRICT, PIN - 683 515, D/O. UNNICHECKAN KESAVAN, MANATHALA AMSOM, THIRUVATHRA DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT.** - **6 SURESH AGED 47 YEARS, C/O. K. D. DASAN, KADUVANKASSERY HOUSE, CHERAI P. O., NEAR ARYA SCHOOL, ERNAKULAM DISTRICT, PIN - 683 514.** - **7 VIJAYAN AGED 69 YEARS, S/O. UNNICHEKKAN KESAVAN, VALAPPAD AMSOM, VALAPPAD DESOM, VALAPPAD P. O., KOORITHARA, CHAVAKKAD TALUK, THRISSUR DISTRICT, PIN - 680 567.** - **8 VIMALA, AGED 51 YEARS, W/O.CHETTIPARAMBIL KISHORE, PADINJARE VEMBALLUR P. O., KODUNGALLOOR TALUK, THRISSUR DISTRICT, PIN - 680 671., D/O. UNNICHEKAN, MANATHALA AMSOM, THIRUVATHRA DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT.** - **9 JAYA PRIYAN,** - **AGED 47 YEARS, D/O. LATE SATHI AND CHEVIDAN KULAVAN VASU AND W/O. PRIYAN, KAREPARAMBIL HOUSE, CHULLIPPADI, KUNDALIYUR P.O., THRISSUR DISTRICT, PIN - 680 616.** 3 F.A.O.No.32 of 2022 - **10 MAHESARAN,** - **AGED 46 YEARS, S/O. LATE SATHI AND CHEVIDAN KULAVAN VASU, BEACH ROAD, CHAVAKKAD P. O., CHAVAKKAD TALUK, THRISSUR DISTRICT, PIN - 680 506.** - **11 DHANESWARAN,** - **AGED 43 YEARS, S/O. LATE SATHI AND CHEVIDAN KULAVAN VASU, BEACH ROAD, CHAVAKKAD P. O., CHAVAKKAD TALUK, THRISSUR DISTRICT,PIN-680 506.** - **12 RAMBHA GIREESAN, AGED 41 YEARS, W/O. GIREESAN, BLANGATTUKARAN HOUSE, ENGANDIYUR, KUNDALIYUR P. O., THRISSUR DISTRICT, PIN - 680 616.** - **13 DINESWARAN, AGED 39 YEARS, S/O. LATE SATHI AND CHEVIDAN KULAVAN VASU, BEACH ROAD, CHAVAKKAD P. O., CHAVAKKAD TALUK, THRISSUR DISTRICT,PIN-680 506.** - **14 ANANDHAN,** - **AGED 37 YEARS, S/O. LATE SATHI AND CHEVIDAN KULAVAN VASU, BEACH ROAD, CHAVAKKAD P. O., CHAVAKKAD TALUK, THRISSUR DISTRICT,PIN-680 506.** - **BY ADVS.** - **T.K.ASOKAN (Therlli) – R1 TO R6 DALLY ASOKAN – R1 TO R6** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 25.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 4 F.A.O.No.32 of 2022 ## **JUDGMENT** ## Ajithkumar, J. This is an appeal filed under Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908. Order in I.A.No.49 of 2018 in O.S.No.96 of 2018 of the Sub Court, Chavakkad is under challenge. 2. I.A.No.49 of 2018 was filed by the 5th defendant in O.S.No.96 of 2018 seeking to set aside the exparte decree passed in the suit on 23.09.2017. The suit is one for partition. It was filed by the respondents 1 to 6, the plaintiffs. Defendants 2, 4, 6, 7 and 9 had entered appearance and filed Vakalath. It is seen that none of the defendants filed written statement. The Sub Court therefore declared the defendants ex parte and proceeded to pass an exparte decree on 23.09.2017. The appellant would contend that he could not meet his counsel and give instructions to file a written statement due to unavoidable reasons. There was no negligence or laches on his part and immediately on knowing that the suit was decreed exparte, he has filed I.A.No.49 of 2018 seeking to set aside the exparte 5 F.A.O.No.32 of 2022 decree. Therefore, the appellant maintains that there was sufficient reason to set aside the decree. 3. On 04.03.2022, this appeal was admitted and notice was ordered to be sent to the respondents. The respondents 1 to 6, who are the plaintiffs in the suit, on receiving notice, entered appearance through their learned counsel. Notice could not be served on respondents 7 and 10. Although received notice, other respondents did not turn up. Respondents 7 to 14 are the co-defendants. Since all the plaintiffs in the suit entered appearance, service of notice on respondents 7 and 10 is dispensed with. 4. Heard the learned counsel for the appellant and also the learned counsel appearing for respondents 1 to 6. 5. The appellant on receipt of summons entered appearance in the suit through his counsel. But, he failed to file a written statement in time. Not only the appellant, but the other defendants also failed to file written statements. It is seen that on 23.09.2017, the date on which the defendants, who entered appearance, were to file written statements, the 6 ## F.A.O.No.32 of 2022 court proceeded to pass a decree on their failure to file written statements. The petitioner filed I.A.No.49 of 2018 on 11.10.2017. Thus the said petition was filed within the prescribed time. The learned counsel appearing for the appellant would submit that filing of I.A.No.49 of 2018 itself would show that there was no negligence or laches on the part of the appellant, and therefore, the learned Sub Judge ought to have allowed that application. 6. The learned Sub Judge on observing that the appellant did not file a written statement along with I.A.No.49 of 2018 found that there was no bona fides on the part of the appellant. The view taken by the learned Sub Judge is that had the appellant bona fides, he would have filed a written statement along with I.A.No.49 of 2018. The said reason is not sound or acceptable. Suit was already decreed. Since the suit was not pending on file, it was not prudent to expect that the appellant ought to have filed the written statement also along with the said application. If the learned Sub Judge instructed the appellant to file written statement before taking 7 ## F.A.O.No.32 of 2022 I.A.No.49 of 2018 for consideration and the appellant failed to comply with, such a finding could be said plausible. 7. In **Robin Thapa v. Rohit Dora [(2019) 7 SCC 359]** the Apex Court held that, ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that, as far as possible, adjudication be done on merits. ## 8. 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 8 F.A.O.No.32 of 2022 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. 9. A division Bench of this Court reiterated the above principle in **Shivananda M. v. M. Susheela and others [2021 (5) KHC 357]** (one among us, Anil K.Narendran J. authored it). It was further held 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 a 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. 9 ## F.A.O.No.32 of 2022 For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits. 10. The appellant has filed I.A.No.49 of 2018 within the prescribed period. There is nothing to find that he had resorted to delaying tactics. The suit is one for partition and it is only just and fair to allow the appellant to prosecute the matter, thereby to get a decision on merits in the suit. Taking those facts into account, we are of the view that this appeal is liable to be allowed and the impugned order on I.A.No.49 of 2018 is liable to be set aside. Hence, this appeal is allowed and the impugned order is set aside. Consequently, I.A.No.49 of 2018 in O.S.No.96 of 2018 on the file of the Sub Court, Chavakkad stands allowed. The Sub Court, Chavakkad shall restore the suit on file and proceed with it in accordance with law. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 10 ## F.A.O.No.32 of 2022 O.S.No.96 of 2018, wherever it occurs in the judgment dated 25.03.2022 in F.A.O.No.32 of 2022 is corrected as O.S.No.96 of 2016 as per order dated 27.06.2022 in I.A.No.2 of 2022 in F.A.O.No.32 of 2022. Sd/- **JOINT REGISTRAR**