V.K. Gopinathan v. Director, Local Fund Audit, Thiruvananthapuram and Others

## **`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 16[TH] DAY OF JUNE 2023 / 26TH JYAISHTA, 1945 ``` ``` FAO NO.188 OF 2016 ``` ``` AGAINST THE ORDER IN I.A.NO.488 OF 2015 IN O.P (LFA) NO.14 OF 2014 ON THE FILES OF ADDITIONAL DISTRICT JUDGE I, KALPETTA, WYNAD, DATED 08.04.2016 ``` ``` APPELLANT/PETITIONER: ``` ## **`V.K.GOPINATHAN`** ``` AGED 58 YEARS, S/O.NEELAKANDAN, SUHARA QUARTERS, ORUMIKULAM, AMBILERI, KALPETTA POST, NOW RESIDING AT 'SREE SAILAM', VYDIYA NAGAR, PULIYARMALA KALPETTA NORTH POST, KALPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT ``` ``` BY ADVS. ``` ``` SRI.M.SASINDRAN SRI.V.VENUGOPAL ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 THE DIRECTOR, LOCAL FUND AUDIT THIRUVANANTHAPURAM-695001`** - **`2 THE SECRETARY MANNANTHAVADY GRAMA PANCHAYATH,`** ``` MANNANTHAVAY POST-671121, WYNAD DISTRICT ``` - **`3 THE DEPUTY DIRECTOR OF PANCHAYATH WAYANAD, KALPETTA POST-671121, WAYANAD DISTRICT.`** ``` 2 ``` FAO No.188 of 2016 - **`4 THE STATE OF KERALA`** ``` REPRESENTED BY THE DISTRICT COLLECTOR WAYANAD, KALPETTA NORTH-671121, WAYANAD DISTRICT ``` ## **`SRI T.K.SHAJAHAN, GOVERNMENT PLEADER- R1 & R4`** ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 16.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 3 ``` FAO No.188 of 2016 ## **J U D G M E N T** ## Anil K.Narendran, J. The appellant is the petitioner in O.P.(LFA) No.14 of 2014 on the file of the Additional District Judge-I, Kalpetta, which was one filed against the respondents under Section 16(3) of the Kerala Local Fund Audit Act to set aside the surcharge certificate No.LF 9322/Spl.Cell/CSC/D2/2010 dated 18.07.2013 issued by the 1[st] respondent. 2. On 16.11.2015, when that original petition came up for consideration, there was no representation for the appellant. Therefore, the case was adjourned to 17.11.2015. On that day also there was no representation. Therefore, the court below dismissed the original petition for default. Seeking an order to restore that original petition, the appellant filed I.A.No.488 of 2015, invoking the provisions under Order IX Rule 9 of the Code of Civil Procedure, 1908. That application ended in dismissal by the order dated 08.04.2016 for the reason stated therein. The said order is under challenge in this appeal filed invoking the provisions under Order XLIII Rule 1(c) of the Code. 3. On 17.08.2016, when this appeal came up for admission, this Court admitted the matter on file. The learned ``` 4 ``` FAO No.188 of 2016 Government Pleader took notice for respondents 1 and 4. Urgent notice was ordered to respondents 2 and 3. 4. Heard the learned counsel for the appellant and also the learned Senior Government Pleader for respondents 1 and 4. 5. Order IX, Rule 8 of the Code of Civil Procedure deals with procedure where defendant only appears. As per Order IX, Rule 8, where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. 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, ``` 5 ``` FAO No.188 of 2016 and shall appoint a day for proceeding with the suit. As per subrule (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 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 ``` 6 ``` FAO No.188 of 2016 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’ 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 ``` 7 ``` FAO No.188 of 2016 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. ## 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 ``` 8 ``` FAO No.188 of 2016 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 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, though the application filed by the appellant to restore O.P.(LFA) No.14 of 2014 on the file of the Additional District Judge-I, Kalpetta was one filed within the period ``` 9 ``` FAO No.188 of 2016 of limitation, the original petition was dismissed for default on a previous occasion, i.e., on 12.02.2015. In such circumstances, the appellant has to pay costs to the 1[st] respondent. In the result, this appeal is allowed by setting aside the order dated 08.04.2016 in I.A.No.488 of 2015 in O.P.(LFA) No.14 of 2014 on the file of the Additional District Judge-I, Kalpetta, on payment of cost of Rs.5,000/- (Rupees Five thousand only) by the appellant-petitioner to the 2[nd] respondent Panchayat, within a period of three weeks from the date of receipt of a certified copy of this judgment. On such deposit being made, I.A.No.488 of 2015 will stand allowed, restoring O.P.(LFA) No.14 of 2014 to file. Since the original petition is of the year 2014, Additional District JudgeI, Kalpetta, shall proceed with O.P.(LFA) No.14 of 2014 and finally dispose of the same within a period of four months. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** PV