Viji Varghese v. Malabar Pipes and Ceramics Pvt. Ltd. and Jesmin

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` MONDAY, THE 29[TH] DAY OF JANUARY 2024 / 9TH MAGHA, 1945 FAO NO.15OF 2024 ``` ``` AGAINST THE ORDER DATED 11.10.2023 IN R.P.NO.70 OF 2022 IN O.S NO.116/2016 OF THE ADDITIONAL SUB COURT, IRINJALAKUDA ``` ## **`APPELLANT/PETITIONER/IST DEFENDANT:`** ``` VIJI VARGESE, AGED 51 YEARS S/O KANICHAYI VARGESE, RESIDING IN THE ADDRESS KANICHAYI HOUSE, ANNALLUR VILLAGE AND DESOM, ANNALLUR P O, CHALAKUDY TALUK, THRISSUR DISTRICT, PIN - 680731 ``` ``` BY ADV G.SREEKUMAR (CHELUR) ``` ``` RESPONDENTS/PLAINTIFF AND 2[ND] DEFENDANT: ``` ``` 1MALABAR PIPES AND CERAMICS PVT. LTD WEST KORATTY DESOM, KALLUR VADAKKUMMURI VILLAGE, CHALAKUDY TALUK, REPRESENTED BY ITS MANAGING DIRECTOR P I JOSEPH, AGED 59 YEARS, S/O PUTHANVEETIL ITTOOP, CHALAKUDY DESOM, KIZHAKE CHALAKUDY VILLAGE, CHALAKUDY TALUK, THRISSUR DISTRICT, PIN - 680307 ``` ``` 2JESMIN, AGED 47 YEARS /O THEKKETHALA GEORGE, KORATTY DESOM, MURINGUR THEKKUMMURI VILLAGE, KORATTY P O, CHALAKUDY TALUK, THRISSUR DISTRICT, PIN - 680308 ``` ``` R1 BY ADV RASMI NAIR ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 29.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 FAO No.15 of 2024 ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellant is the 1[st] defendant in O.S.No.116 of 2016 on the file of the Sub Court, Irinjalakuda, a suit filed by the 1[st] respondent herein-plaintiff for realisation of money. The appellant has filed this appeal, invoking the provisions under Order XLIII Rule 1(d) of the Code of Civil Procedure, 1903 seeking an order to set aside the order dated 11.10.2023 of the Sub Court, Irinjalakuda in R.P.No.70 of 2022 in O.S.No.116 of 2016, whereby an application filed under Order IX Rule 13 of the Code to set aside the ex parte decree dated 17.09.2022 stands dismissed, for the reasons stated therein. 2. On 23.01.2024, when this appeal came up for admission, this Court issued notice on admission to respondents by special messenger, returnable by 29.01.2024. 3. Heard the learned counsel for the appellant-1[st] defendant and the learned counsel for the 1[st] respondentplaintiff. Despite service of notice, none appeared for the 2[nd] respondent-2[nd] defendant. 4. The issue that requires consideration in this appeal is as to whether any interference is warranted in the order dated 11.10.2023 of the Sub Court, Irinjalakkuda in R.P.No.70 of 2022 3 FAO No.15 of 2024 in O.S.No.116 of 2016, whereby the application filed under Order IX Rule 13 of the Code seeking an order to set aside the _ex parte_ decree dated 17.09.2022 in O.S.No.116 of 2016 stands dismissed for the reason stated therein. In the impugned order, the Sub Court noticed that, on 02.09.2022, when the case was listed for trial, the plaintiff's evidence was taken. There was no appearance for the 1[st] defendant and the case was adjourned to 15.09.2022 and then to 17.09.2022. On that date also there was no representation. Therefore, the defendants were set _ex parte_ and an _ex parte_ decree was passed on 17.09.2022. According to the appellant, on the listed date he was laid up due to fever and body ache. The Sub Court noticed that no evidence was adduced to establish that the appellant was laid up during the period from 02.09.2022 to 17.09.2022. By filing the petition to set aside the _ex parte_ decree each time, for one or other reason, the attempt of the appellant is to protract the litigation. 5. Order IX, Rule 13 of the Code of Civil Procedure provides for setting aside of _ex parte_ decree 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 he satisfies the court that the summons was not duly served, or 4 FAO No.15 of 2024 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 aside that _ex parte_ decree. 6. 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 5 FAO No.15 of 2024 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. 7. In **G.P. Srivastava [(2000) 3 SCC 54]** , 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 mala fide or intentional. 6 FAO No.15 of 2024 For the absence of a party in the case the other side can be compensated by adequate costs and the _lis_ decided 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 [(2000) 3 SCC 54]** , 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 onerous. 9. The principle laid down in **Peeves Enterprises [2015 (3) KHC 981]** was reiterated in **Shivananda M. v. M. Susheela [2021 (5) KHC 357]** . It was 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 the non-appearance of the 7 FAO No.15 of 2024 defendant on the date fixed for hearing when _ex parte_ proceedings were 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. 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. In view of the law laid down in the decisions referred to supra, when the application under Order IX, Rule 13 of the Code of Civil Procedure is one filed within the period of limitation, the discretion has to be exercised in favour of the defendant, when no negligence or inaction is imputable to the defendant and his absence was not mala fide or intentional. For the absence of the defendant, the plaintiff can be compensated by adequate costs and the _lis_ decided on merits. 11. In the impugned order, the Sub Court noticed that no evidence was adduced to establish that the appellant was laid up during the period from 02.09.2022 to 17.09.2022. By filing a petition to set aside the _ex parte_ decree each time, for one or other reason, the attempt of the appellant is to protract the 8 FAO No.15 of 2024 litigation. 12. We notice that the defendants in O.S.No.116 of 2016 were set _ex parte_ and _ex parte_ decrees were passed on earlier - occasions on 11.01.2021 and 26.02.2022, during Covid 19 pandemic period, which were set aside by the Sub Court. It is thereafter that an _ex parte_ decree was again passed on 17.09.2022. Considering the fact that the _ex parte_ decrees on earlier occasions were passed during Covid-19 pandemic period and that the present application under Order IX Rule 13 of the Code is one filed within the period of limitation, one more opportunity can be given to the appellant to contest the suit on merit; however, on payment of a reasonable sum towards costs. 13. In such circumstances, this appeal is disposed of by setting aside the order dated 11.10.2023 in R.P.No.70 of 2022 in O.S.No.116 of 2016, on payment of a cost of Rs.15,000/- to the 1[st] respondent plaintiff, within a period of two weeks, from the date of receipt of a certified copy of this judgment. On such payment being made, R.P.No.70 of 2022 in O.S.No.116 of 2016 will stand allowed, thereby setting aside the _ex parte_ decree passed in that suit on 17.09.2022. Thereafter, the suit shall be proceeded further and finally disposed of, as expeditiously as possible, at any rate, within a further period of four months. In 9 FAO No.15 of 2024 case of any default on the part of the appellant in paying the cost, in terms of this judgment, R.P.No.70 of 2022 in O.S.No.116 of 2016 will stand dismissed. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **G. GIRISH, JUDGE** SMA