Appeal against dismissal of application to set aside exparte decree in property suit. High Court allowed set aside on condition of immediate payment of costs and strict prohibition on interim applications, ordering expedited hearing by trial court.
Exparte decree set aside; IA allowed on condition of payment Rs. 25,000 costs to respondent within 5 days.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE KURIAN JOSEPH &
THE HONOURABLE MR. JUSTICE K.T.SANKARAN
FRIDAY, THE 19TH DECEMBER 2008 / 28TH AGRAHAYANA 1930
FAO.No. 267 of 2008
AGAINST THE ORDER DATED 29/09/2008 IN IA 2444/08 IN OS.29/2003 OF PRL.SUB COURT, KOZHIKODE
APPELLANTS/PETITIONERS/DEFENDANTS
BY ADV. SRI.P.V.KUNHIKRISHNAN
RESPONDENT: RESPONDENT/PLAINTIFF
SATHI AMMA, D/O.LAKSHMI AMMA, 'SREEHARI', NALLALAM AMSOM DESOM, KOZHIKODE TALUK.
BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH ADV. SRI.M.S.NARAYANAN(MEDIATOR)
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 19/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
KURIAN JOSEPH & K.T.SANKARAN, JJ.
F.A.O. NO. 267 OF 2008
Dated this the 19th December, 2008
JUDGMENT
K.T.Sankaran, J .
The defendants in O.S.No.29 of 2003 on the file of the Court of the Subordinate Judge of Kozhikode, whose application under Order IX Rule 13 of the Code of Civil Procedure was dismissed by the court below, have filed this appeal challenging the order of the court below.
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plaint A schedule property. Excluding the properties assigned in favour of defendants 1 to 4, the balance extent of 2.27 acres is in the possession of the plaintiff. The property assigned out of plaint A schedule property is shown as plaint B schedule property and the properties in possession of the plaintiff excluding plaint B schedule property is shown as plaint C schedule. The prayer is to fix the boundary of the plaint C schedule property.
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adjournment of the case. The prayer for adjournment was rejected and the defendants were called absent and set exparte. The suit was decreed exparte. The defendants filed I.A.No.2444 of 2008 to set aside the exparte decree. They contended that the Advocate's Clerk omitted to note the date of posting of the case in the list and the defendants were not informed about the posting of the case. The application was opposed by the plaintiff. The court below noticed that the case was posted on several occasions after framing of issues. The defendants failed to pay the court fee payable on the counter claim. The counter claim was rejected under Rule 11(c) of Order VII of the Code of Civil Procedure. It was also noticed that the defendants were not vigilant in prosecuting the case. The fact that the defendants were set exparte on an earlier occasion was also taken note of by the court below. As stated earlier, the court below dismissed the application.
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passed. Learned counsel for the petitioners/defendants submitted that the court below should have allowed the application at least on terms. Learned counsel appearing for the respondent/plaintiff submitted that the defendants tried to protract the suit for the last more than five years and they do not deserve any discretionary relief. Learned counsel for the respondent/plaintiff has filed a statement before us stating the dates and events in respect of the suit. The dates and events would reveal the following facts: The suit was filed on 17.12.2002. The defendants did not appear on summons and they were set exparte on 13.6.2003. The exparte order was later set aside on 29.1.2004 on terms. On 20.2.2004, the court below directed the defendants to file written statement within thirty days and the case was posted to 27.3.2004. But defendants failed to file the written statement. Later, on application filed by the defendants, the written statement was received as per order dated 26.11.2004. However, the defendants failed to pay the requisite court fee payable on the counter claim. On 8.1.2008, the court below dismissed the counter claim on the ground of non-payment of court fee in spite of granting sufficient opportunity to the defendants to pay the requisite court fee.
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of the plaint C schedule property pursuant to an agreement for sale. The counsel submits that an agreement for sale would not confer any title. The defendants also claim adverse possession. The counsel also submits that the defendants having claimed that they got possession of the property as per the agreement for sale, they are not entitled to claim adverse possession. It is also pointed out that an alternative relief for recovery of possession was sought for by the plaintiff praying that in case it is found that the defendants are in possession of any portion of the property, a decree for recovery of possession may be passed. In the light of the facts mentioned above, the counsel for the respondent submits that the defendants cannot not successfully resist the suit being decreed and that any further trial would be unnecessary. The counsel points out that the only intention of the defendants is to protract the proceedings and to deny the fruits of the decree granted in favour of the plaintiff.
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5.7.2008, which was rejected by the court below. The suit was decreed exparte on the same date. The facts narrated above would reveal that the defendants tried to protract the case. Still we are of the view that a last opportunity should be granted to the defendants to contest the case on the merits. This opportunity is being granted only to ensure that a decision on the merits after hearing the parties be arrived at in the case. Such an opportunity should not be misused by the defendants. The past conduct of the defendants in the matter of proceeding with the case is far from satisfactory. In fact, the defendants are not entitled to get any discretionary relief in their favour. Taking into account all the facts and circumstances, we are inclined to allow the prayer to set aside the exparte decree on stringent terms.
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treated as dismissed. It is also made clear that the defendants shall not file any interlocutory application except for unavoidable purposes like impleading the legal representatives, to accept the witness list etc. The trial court shall include the suit in the special list for February, 2009. The suit shall be disposed of by the trial court as expeditiously as possible and at any rate, before 15.3.2009. In view of the serious allegations regarding the dilatory tactics adopted by the appellants and further allegation regarding experimental litigations, we make it clear that any Writ Petition or Revision or any other proceeding filed before the High Court in respect of the suit shall be posted before the Bench which disposed of this appeal.
The interlocutory application for stay, namely, I.A.No.4504 of 2008, is dismissed.
(KURIAN JOSEPH) Judge
(K.T.SANKARAN) Judge
ahz/
3 issues framed by the court
Whether to allow setting aside exparte decree given defendants' history of dilatory tactics.
Whether last opportunity to contest merits should be granted despite procedural defaults.
Whether stringent conditions including cost payment can be imposed on setting aside decree.
2 provisions across 1 enactments
CHERIYA MAYAN & ORS.
SATHI AMMA
KURIAN JOSEPH
K.T. SANKARAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
