# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT**
**THE HONOURABLE MR.JUSTICE K.HARILAL**
## **&**
**THE HONOURABLE MR.JUSTICE C.S.DIAS**
**TUESDAY, THE 19TH DAY OF NOVEMBER 2019 / 28TH KARTHIKA, 1941**
**FAO.No.195 OF 2017**
**AGAINST THE ORDER IN IA NO.2096/12 AND I.A NO.2097/12 IN OS 258/2009 DATED 09-06-2017 OF SUB COURT,ATTINGAL**
## **APPELLANT/PETITIONER/DEFENDANT:**
**VIKRAMAN, AGED 55 YEARS, S/O LEKSHMANAN, KAILAS, NELLIMUKKU, KOLLAM.**
**BY ADV. SRI.SAJU J PANICKER**
## **RESPONDENT/RESPONDENT/PLAINTIFF:**
**MUHAMMED ISMAIL AGED 62, S/O MUHAMMED KUNJU, KUNNIL PUTHEN VEEDU,VENGODE, PALAYAMKUNNU PO, ELAKAMON, AYIROOR,VARKALA, THIRUVANANTHAPURAM.**
**R1 BY ADV. SRI.K.MOHANAKANNAN R1 BY ADV. SRI.SAABIR F. HAQ**
**THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 19.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
Dated this the 19[th] day of November 2019 **K.HARILAL,J.**
The appellant herein is the defendant, who is confronting with an _ex parte_ decree passed against him. This appeal is directed against the impugned common order passed by the Sub Court, Attingal in I.A.No.2096/ 2012 and I.A No.2097/2012 in O.S.No.258/2009. O.S.No. 258/2009 is a suit for specific performance filed by the respondent herein against the appellant.
2. The respondent filed the aforesaid original suit seeking a decree for specific performance of a contract against the appellant herein, alleging that the appellant received Rs.5lakhs, agreeing to convey the plaint schedule property, by way of sale. But the appellant refused to execute the sale deed. The _ex parte_ decree
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was passed against him on 15.02.2010. According to the appellant, he came to know about the _ex parte_ decree, only when he received notice on 10.03.2012 in the application filed by the respondent in O.A.No.209/2012 before the Debt Recovery Tribunal, Ernakulam. Hence, the appellant filed I.A No.2097/2012 under Order IX, Rule 13 of CPC to set aside the _ex parte_ decree passed against him in the suit and I.A.No.2096/2012 under Section 5 of the Limitation Act, to condone the delay of 973 days in filing the application to set aside the _ex parte_ decree. According to the appellant, he was totally unaware of the suit and the _ex parte_ decree passed against him, till 10.03.2012. He was on bed rest for about 1½ years, since a portion of his body was paralysed because of rheumatics. He did not receive any summons or notice in the suit. So, there is no willful laches or omission on his side, in not attending to the suit proceedings. He has got a very good case to defend the suit. Thus, he prayed for
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setting aside the _ex parte_ decree passed against him.
3. The respondent resisted the prayer for condoning the delay and to set aside the _ex parte_ decree, contending that the appellant was fully aware of the passing of the _ex parte_ decree against him before 10.03.2012 and he willfully stayed away from appearing before the court, when the case was called on for hearing. When he came to know about the _ex parte_ decree, he mortgaged the suit property with SBT, Parippally Branch, in connivance with Bank officials and forcefully evicted the respondent and their family from the suit property. Thereafter, he obtained a false sale certificate in the name of Nizamudeen and Sivaprasad, under SARFAESI proceedings initiated by the SBT, Parippally Branch. The respondent preferred O.A.No. 209/2012 before the DRT, Ernakulam, in which, an order of injunction was passed against the appellant and his henchmen. The interlocutory applications were filed on
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an experimental basis to overcome a possible order, in favour of the respondent from DRT. Since, the property has already been sold to Nizamudeen and Sivaprasad, the appellant has no _locus standi_ to file the applications. The appellant, in collusion with his friend one Sanal Kumar, filed O.S.No.769/2011 before the Sub Court, Kollam and another collusive suit was filed as O.S.No.455/2012 before the same court, by the wife of the appellant and obtained an order of attachment of the suit property. The respondent preferred claim petitions in the above suits and the appellant got knowledge about the _ex parte_ decree passed against him from the claim petitions. Moreover, the purchasers of the property, Nizamudeen and Sivaprasad, filed O.S.No.76/2019 before the Munsiff’s court, Varkala against the respondent and the appellant on 21.02.2012. The appellant herein remained _ex parte_ in the said suit also, though he received summons. Thus, after remaining _ex parte_ in the
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said suit, the appellant was playing fraud, by instituting the aforesaid suits against the respondent with an intent to overcome the _ex parte_ decree passed against him. The appellant filed the interlocutory applications even after the expiry of 7 months from 10.03.2012; the admitted date on which, the appellant got information regarding the _ex parte_ decree. Thus, the cause of delay, shown in the affidavit is a concocted story made without _bona fides_ any . Hence, the respondent prayed for dismissal of the aforesaid applications.
4. On the rival pleadings, both parties adduced evidence, which consists of the oral testimonies of PWs1 and PW2 and Ext.A1 from the part of the appellant and oral testimonies of DWs1 and DW2 and Exts.B1 to B11 from the part of the respondent and Ext.X1 as witness’s evidence. The court below dismissed both the applications, on a finding that the appellant has sufficient knowledge about the _ex parte_ decree passed against him
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before 10.03.2012. The legality and correctness of the aforesaid findings are challenged in this appeal.
5. Heard the learned counsel for the appellant and
the learned counsel for the respondent.
6. In view of the arguments at the bar, the question to be considered is, whether the court below is justified in dismissing the application to condone the delay, on a finding that the appellant was fully aware of the _ex parte_ decree passed against him, before 10.03.2012 and there is no _bona fides_ in the cause of delay projected in the application.
7. The appellant is the defendant, against whom an ex parte decree was passed in O.S.No.258/2009 directing him to execute the sale deed, in favour of the respondent. According to the appellant, he came to know about the _ex-parte_ decree, only on 10.03.2012, when he received notice in O.A.No.209/2012, filed by the respondent herein before the DRT, Ernakulam. But,
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I.A.Nos.2096/2012 and 2097/2012 are seen filed on 17.10.2012 ie; 7 months after getting knowledge about the _ex parte_ decree, passed against him. What is the cause of delay for 7 months in filing the aforesaid application, after getting knowledge about the _ex parte_ decree passed against him? Nothing has been specifically stated in the affidavit, as the reason for the said delay of 7 months.
8. Coming to the general cause of delay for filing the application to set aside the _ex parte_ decree, it is stated as follows: “I was laid up due to paralysis caused by arthritis”. The specific period during which, he was allegedly laid up, with dates or year was not specifically averred in the affidavit filed along with the petition. Therefore, we _prima facie_ find that the averments in the affidavit do not disclose the cause of delay and the same is fatal to the prayer for condoning the delay.
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9. Coming to the evidence on record, in respect of the delay of 1½ years, the appellant has produced Ext.A1 medical certificate of the Doctor, who was examined as PW2, to prove the alleged fact that the appellant was laid up due to paralysis for 1½ years. On a considered reading of Ext.A1, we find that PW2 certify that the appellant was under his treatment from 18.03.2010 as he was suffering from paralysis and arthritis and he was on bed rest for the last 1½ years. Here also, the period, for which he was laid up, with specific dates, is not specifically stated. More importantly, the certificate is seen issued in advance on the date of visit for treatment, ie; on 18.03.2010 itself. Thus, what is stated in Ext.A1 is an anticipated period of rest only and not the actual period of rest alleged by the appellant. Therefore, no reliance can be placed on the said certificate also.
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10. That apart, Ext.B11 reply signed by the Public Information Officer, Govt. Ayurvedic Dispensary, Chathannor, under the Right to Information Act, would show that as per the O.P.Register of that hospital, the appellant was treated as out patient on different dates for the period from 18.03.2010 to 30.04.2010 only ie; hardly for 1 ½ months as out patient. Thus, Ext.A1 medical certificate is seen issued contrary to the records in the hospital. It is needless to say that the witness may lie, but the documents will not lie. Thus, the respondent has succeeded in disproving Ext.A1.
11. A combined reading of Ext.A1 to Ext.B11 would give rise to an inference that the appellant has obtained Ext.A1 false certificate from PW2, to defraud the court. So, the court below is justified in rejecting Ext.A1 and the oral testimony of PW2. To sum up, the appellant miserably failed to plead and prove the cause of delay in filing the application to set aside the _ex parte_ decree.
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12. That apart, we have meticulously gone through Ext.B2 to B11 documents filed by the respondent and we find that several original suits, in respect of the suit property a to which the appellant was also a party, were filed before 10.03.2012. Ext.B2 is a claim petition, dated 11.11.2011, filed by one Sanal Kumar in O.S.No.769/2011 _ex_ before the Sub Court, Kolam. The appellant remained _parte_ in all the aforesaid proceedings. So, it cannot be said that the appellant was unaware of the respondent's claim over the suit property, under the _ex parte_ decree, passed against him in O.S.No.258/2009.
13. The appellant has a case that summons was not duly served on him in the suit, in accordance with law. But, going through the back records, we find that substituted service of summons was effected through paper publication made in Kerala Koumudi daily dated 18.01.2010, having wide circulation in the place, where the appellant is ordinarily residing. Moreover, the
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address shown in the cause title of this appeal is seen shown in the paper publication also. Therefore, the appellant cannot be heard to contend that he was not residing in the address, shown in the paper publication. In short, the substituted service is seen effected in compliance with the statutory requirements, under Order V Rule 20 of CPC. But, the court below went wrong by arriving at a finding that the materials on record, suggest that there was no proper service of summons and notice on the defendant in the suit. Thus, we disagree with the court below on point No.1 in the impugned judgment.
14. As rightly observed by the court below, even if the summons was not duly served on the appellant, if the court is convinced that the defendant had otherwise knowledge of the proceedings, he cannot put forward a ground of non-service of summons for setting aside the _ex parte_ decree, by invoking Rule 13 of Order IX of CPC. The above view is supported by the decision of the
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Hon'ble Supreme Court in _**Sunil Poddar**_ v. _**Union Bank of India [2008(2) KLT SN 15 (C.No.16) SC]**_ .
15. We conclude that in the instant case, the appellant miserably failed to plead properly or prove the cause of delay of 973 days; but the respondent has succeeded in proving that the appellant was well aware of the _ex parte_ decree passed against him before 10.03.2012. So also the cause of delay is a concocted story made without _bona fides_ . The court below is justified in passing the impugned common order.
Hence, the appeal fails and is dismissed accordingly.
**Sd/K.HARILAL JUDGE**
**Sd/C.S.DIAS JUDGE**
SB/06/01/2020
