Vijayamma and Nandu Krishna v. Janardhanan Pillai and Radhika

## **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 28[TH] DAY OF JANUARY 2022 / 8TH MAGHA, 1943** **FAO NO. 76 OF 2021** **AGAINST THE ORDER DATED 18.10.2021 IN I.A.NO.1 OF 2021 IN O.S.NO.21 OF 2019 OF THE SUB COURT, PUNALUR** ## **APPELLANTS/DEFENDANTS:** **1 VIJAYAMMA AGED 72 YEARS W/O. VASUKKUTTAN NAIR, UTHRAM VEEDU, ERAM, THADIKKADU P.O., ANCHAL VILLAGE, PUNALUR TALUK. 2 NANDU KRISHNA AGED 24 YEARS S/O. NANDAKUMAR, UTHRAM VEEDU, ERAM, THADIKKADU P.O., ANCHAL VILLAGE, PUNALUR TALUK. BY ADVS. GEORGE VARGHESE(PERUMPALLIKUTTIYIL) A.R.DILEEP P.J.JOE PAUL MANU SRINATH** ## **RESPONDENTS/PLAINTIFFS:** **1 JANARDHANAN PILLAI AGED 76 YEARS S/O. GOPALA PILLAI, KRISHNA KRIPA, KOTTUKKAL VILLAGE, KOTTARAKARA TALUK, KOLLAM-691 306. 2 RADHIKA AGED 30 YEARS W/O. HARIKRISHNAN, KRISHNA KRIPA, KOTTUKKAL VILLAGE, KOTTARAKARA TALUK, KOLLAM-691 306. BY ADVS. S.SREEJITH SUBHASH CYRIAC SHEEBA JOSEPH ASHA JYOTHY M.C.SHIJIMOL** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 28.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** F.A.O.No.76 of 2021 2 ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellants, who are the defendants in O.S.No.21 of 2019 on the file of the Sub Court, Punalur, has filed this appeal under Section 104 and Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908, challenging the order dated 18.10.2021 in I.A.No.1 of 2021 in O.S.No.21 of 2019 of that court, whereby that interlocutory application filed by the defendants under Order IX Rule 13 of the Code of Civil Procedure, 1908, seeking an order to set aside the ex-parte decree passed on 02.02.2021, stands rejected for the reasons stated therein. 2. On 23.11.2021, when this appeal came up for admission, this Court admitted the matter on file and issued notice by speed post to the respondents, returnable within three weeks. In I.A.No.1 of 2021, this Court granted an interim stay of all further proceedings pursuant to the ex-parte decree in O.S.No.21 of 2019 on the file of the Sub Court, Punalur, for a period of one month. The said interim order was extended by two months on 22.12.2021. 3. Heard the learned counsel for the appellantsdefendants and also the learned counsel for the respondents- F.A.O.No.76 of 2021 3 plaintiffs. 4. The issue that arises for consideration in this appeal is as to whether any interference is warranted on the order dated 18.10.2021 of the Sub Court, Punalur, in I.A.No.1 of 2021 in O.S.No.21 of 2019. 5. O.S.No.21 of 2019 is one filed by the plaintiffs, against the defendants, seeking a decree for specific performance of an agreement for sale in respect of the plaint schedule property; or in the alternative, for return of advance sale consideration of Rs.10,00,000/- out of the total sale consideration of Rs.27,50,000/-. The defendants entered appearance and filed a joint written statement. On 06.08.2020, the trial court framed issues and the case was listed for trail on 01.02.2021. 6. According to the defendants, on 01.02.2021, the 1[st] defendant was affected by severe vomiting, shivering and stomach pain and she had to undergo treatment at a hospital. She had been undergoing treatment for fracture of her shoulder bone also. The 2[nd] defendant, her grandson, was accompanying her to the hospital. Therefore, the defendants could not appear before the court below or even contact their F.A.O.No.76 of 2021 4 lawyer. When the case was called on 01.02.2021, the defendants were absent and they were set ex-parte and an exparte decree was passed on the very next day, i.e., on 02.02.2021, relying on the affidavit filed in lieu of chief examination. On 17.02.2021, well within the period of limitation, the defendants filed I.A.No.1 of 2021, an application under Order IX Rule 13 of the Code of Civil Procedure, for setting aside the ex-parte decree passed against them on 02.02.2021. Along with that application, the defendants have produced medial certificate evidencing treatment of the 1[st] defendant. 7. The plaintiffs filed objection, opposing the relief sought for in I.A.No.1 of 2021, by contending that there are two defendants in O.S.No.21 of 2019. Nothing has been stated regarding the inconvenience of the 2[nd] defendant in appearing before the court on the date of trial. Though it is stated that the 2[nd] defendants was the bystander of the 1[st] defendant, she could have availed the assistance of her husband or daughter. She deliberately avoided them and availed the assistance of the 2[nd] defendant, in order to abstain from appearing before the court. The learned counsel for the defendants was also F.A.O.No.76 of 2021 5 absent on 01.02.2021. 8. The court below, after considering the rival contentions, rejected that application, stating various reasons. The court below found that the doctor, who issued the medical certificate, was not examined in order to prove its contents. Even if the doctor concerned was examined, the medical certificate would only show that the 1[st] defendant had such ailments on 01.02.2021. Why did the defendants failed to appear before the court below on 02.02.2021, i.e., the date on which they were set ex-parte, is not stated. There is nothing on record to show that the 1[st] defendant was unable to appear due to any ailment on 02.02.2021. What was the reason for the 2[nd] defendant in not appearing before the court on 02.02.2021 is also not pleaded. Therefore, the court below concluded that the defendants haven not stated sufficient cause for their non-appearance on 02.02.2021 and accordingly, dismissed I.A.No.1 of 2021 by the impugned order dated 18.10.2021. 9. Order IX, Rule 13 of the Code of Civil Procedure 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 F.A.O.No.76 of 2021 6 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 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 F.A.O.No.76 of 2021 7 aside that _ex parte_ decree. 10. 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 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. 11. 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 nonappearance of the defendant on the date fixed for hearing when _ex parte_ proceedings initiated against him, he cannot be F.A.O.No.76 of 2021 8 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 other side can be compensated by adequate costs and the _lis_ decided on merits. 12. 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 F.A.O.No.76 of 2021 9 ## onerous. 13. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that, the reasoning of the court below in rejecting I.A.No.1 of 2021 in O.S.No.21 of 2019 filed by the appellants-defendants, especially when that interlocutory application was one filed within the time limit, cannot be sustained in law. The conduct of the defendants in not properly instructing their counsel before the court below had resulted in the ex-parte decree in O.S.No.21 of 2019. The plaintiffs have to be compensated adequately for loss of time and the inconvenience caused to them. 14. In the result, this appeal is allowed by setting aside the order dated 18.10.2021 in I.A.No.1 of 2021 in O.S.No.21 of 2019 on payment of a cost of **Rs.2,500/-** to the respondents-plaintiffs, by the appellants-defendants, within a period of two weeks from the date of receipt of a certified copy of this judgment. On such payment, the ex-parte decree dated 02.02.2021 in O.S.No.21 of 2019 will stand set aside. Thereafter, the Sub Court shall proceed with O.S.No.21 of 2019 and dispose of the same, as expeditiously as possible, at F.A.O.No.76 of 2021 10 any rate, within a period of six months. 15. Both parties shall appear before the court below on **21.02.2022** . **Sd/-** **ANIL K.NARENDRAN JUDGE** **Sd/-** **P.G. AJITHKUMAR JUDGE** **yd**