Vijayamma v. Nandakumaran Pillai and Aravindakshan Pillai

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ## **`THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR`** ``` WEDNESDAY, THE 9[TH] DAY OF AUGUST 2023 / 18TH SRAVANA, 1945 ``` ``` F.A.O.NO.235OF 2016 ``` ``` CHALLENGING THE ORDER IN I.A.No.1162 OF 2014 AND I.A.No.1166 OF ``` ``` 2014 IN O.S.NO.46 OF 2012 DATED 02.09.2015 ON FILE OF THE SUB ``` ``` JUDGE’S COURT, MAVELIKKARA ``` ## **`APPELLANT/PLAINTIFF:`** ``` VIJAYAMMA, AGED 52 YEARS, D/O.DEVAKI AMMA, CHEMPARATHIL KIZHAKKATHIL, VETTIYAR MURI, MAVELIKKARA. ``` ``` BY ADVS. SRI.R.SUNIL KUMAR SMT.A.SALINI LAL ``` ## **`RESPONDENTS/DEFENDANTS:`** - **`1 NANDAKUMARAN PILLAI, AMBADI VEETTIL, PUNNAMOOD MURI, MAVELIKKARA, FROM CHEMPARATHIL KIZHAKKATHIL, VETTIYAR MURI, MAVELIKKARA, PIN-690101.`** - **`2 ARAVINDAKSHAN PILLAI, GOKUL BHAVANAM, VETTIYAR, MAVELIKKARA, PIN-690101.`** - R1 **`BY ADV SRI.RINNY STEPHEN CHAMAPARAMPIL`** ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 09.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 F.A.O.No.235 of 2016 ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellant is the plaintiff in O.S.No.46 of 2012 on the file of the Sub Court, Mavelikkara, which was one filed against the respondents-defendants for specific performance on the strength of an alleged oral agreement between the plaintiff and 1[st] defendant-1[st] respondent herein. That suit was dismissed for default on 20.08.2014. The appellant filed I.A.No.1166 of 2014, an application under Order IX, Rule 9 of the Code of Civil Procedure, 1908, seeking an order to restore that suit. That application was accompanied by I.A.No.1162 of 2014, invoking the provisions under Section 5 of the Limitation Act, 1963 seeking an order to condone the delay of three days. The 1[st] defendant filed an objection opposing the relief sought for. After considering the rival contentions, the court below, by the order dated 02.09.2015, dismissed I.A.No.1166 of 2014 for the reasons stated therein. Based on the said order, I.A.No.1162 of 2014 was also dismissed on the very same day. Feeling aggrieved by the orders dated 02.09.2015 in I.A.No.1166 of 2014 and I.A.No.1162 of 2014, the appellant is before this Court in this appeal, invoking the provisions under Order XLIII, Rule 1(c) of the Code. This appeal was filed along with C.M.Appl.No.517 of 2016 (C.M.Appl.No.1 of 2016) 3 F.A.O.No.235 of 2016 for condonation of delay of 286 days, which has already been allowed by a separate order, on condition that the 1[st] defendant can be adequately compensated by awarding a nominal amount as costs in this appeal. 2. Heard the learned counsel for the appellant-plaintiff and the learned counsel for the 1[st] respondent-1[st] defendant. Despite service of notice, none appears for the 2[nd] respondent. 3. The issue that arises for consideration in this appeal is as to whether any interference is warranted on the orders dated 02.09.2015 of the Sub Court in I.A.No.1162 of 2014 and I.A.No.1166 of 2014 in O.S.No.46 of 2012. 4. The learned counsel for the appellant-plaintiff would submit that when the delay sought to be condoned by filing I.A.No.1162 of 2014 is only three days and a sufficient cause has been shown for condonation of delay and also for the absence of the plaintiff on 20.08.2014 when the suit was listed for trial, the court below ought to have allowed those interlocutory applications. 5. On the other hand, the learned counsel for the 1[st] respondent-1[st] defendant would contend that valid reasons have been stated by the court below in the order dated 02.09.2015 in I.A.No.1162 of 2014, for dismissing the application for condonation 4 F.A.O.No.235 of 2016 of delay. In such circumstances, no interference is warranted on the order dated 02.09.2015 in I.A.No.1166 of 2014 and also the consequential order in I.A.No.1162 of 2014. 6. Order IX, Rule 9 of the Code provides that decree against plaintiff by default bars fresh suit. As per sub-rule (1) of Rule 9, where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient cause for - his non appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. As per sub-rule (2) of Rule 9, no order shall be made under this rule unless notice of the application has been served on the opposite party. 7. Order IX, Rule 13 of the Code 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 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 5 F.A.O.No.235 of 2016 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 aside that _ex parte_ decree. ## 8. 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’ 6 F.A.O.No.235 of 2016 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. 9. 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 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 defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not malafide 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. 7 F.A.O.No.235 of 2016 ## 10. In **M. Shivananda v. M. Susheela and others [2021** **(5) KHC 357]** a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party held that, Order IX, Rule 9 of the Code of Civil Procedure enables the court to set the dismissal aside, if the plaintiff satisfies the court that there was sufficient cause for - his non appearance when the suit was called on for hearing. On the other hand, Order IX, Rule 13 of the Code enables the court which passed a decree _ex parte_ to set it aside, if the defendant 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. Therefore, the principle laid down by the Apex Court in **G.P. Srivastava [(2000) 3 SCC 54]** , in the context of an application filed under Order IX, Rule 13 of the Code, apply with equal force in the consideration of an application filed under Order IX, Rule 9 of the Code. ## 11. 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 in which one among us [Anil K. Narendran, J] was a party 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 8 F.A.O.No.235 of 2016 for setting aside the _ex parte_ decree. When no negligence or inaction is imputable to the erring party and the absence was not malafide 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 onerous. 12. In the instant case, as already noticed hereinbefore, the extent of delay in filing the application under Order IX, Rule 9 of the Code, which was sought to be condoned by filing I.A.No.1162 of 2014, was only three days. Since the plaintiff approached the court immediately after the expiry of the statutory time specified, the Sub Court ought to have allowed both the interlocutory applications, when the absence of the plaintiff on 20.08.2014 cannot be said to be malafide or intentional. Viewed in the light of the law laid down in the decisions referred to supra and taking note of the condition stipulated in the order in C.M.Appl.No.1 of 2016 while condoning the delay of 286 days in filing this appeal, we find that an interference is warranted in the order dated 02.09.2015; however, on payment of a cost of Rs.2,500/-, payable to the 1[st] respondent-1[st] defendant. 13. In such circumstances, this appeal is allowed by setting 9 ## F.A.O.No.235 of 2016 aside the order of the Sub Court, Mavelikara dated 02.09.2015 in I.A.No.1166 of 2014 and the consequential order in I.A.No.1162 of 2014, on payment of a cost of Rs.2,500/-, payable by the appellantplaintiff to the 1[st] respondent-1[st] defendant, within three weeks from the date of receipt of a certified copy of this judgment. On such cost being paid, those interlocutory applications will stand allowed, thereby restoring O.S.No.46 of 2012 to file. Since the suit is of the year 2005, the Sub Court, Mavelikara shall finally dispose of the same, as expeditiously as possible, at any rate, within a period of four months. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** MIN