The High Court dismissed the first appeal against an order rejecting the appellant's applications to condone a 2318-day delay in filing an application to set aside an ex-parte decree. The court held the appellant failed to provide a satisfactory explanation for the delay, noting he was aware of the decree and the injunction restricting property alienation.
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 P.N.RAVINDRAN
&
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 11TH DAY OF OCTOBER 2017/19TH ASWINA, 1939
FAO.No. 91 of 2017 ()
I.A.NOS.165 AND 166 OF 2016 IN OS NO.18/2004 OF THE SUB COURT, MAVELIKKARA
APPELLANT(S):PETITIONER
ALEXANDER, AGED 64 YEARS, S/O.SAMUEL, MONOLISA, THEKKE MANKUZHI, BHARANIKKAVU, ALAPPUZHA DISTRICT, NOW RESIDING AT SANTHOSH BHAVANAM, PAZHAKKULAM P.O., PERINGANADU VILLAGE, PATHANAMTHITTA DIST.
BY ADV. SRI.B.RENJITHKUMAR
COUNTER PETITIONER/RESPONDENT(S):
BABU, AGED 62 YEARS, S/O.CHAKRAPANI, CHAKKALAYIL PUTHUVAL HOUSE, MANGALAM MURI, ARATTPUZHA VILLAGE, ALAPPUZHA DIST.-674301.
R1 BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 11-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.N. Ravindran & Devan Ramachandran, JJ.
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F.A.O.No.91 of 2017
- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 11th October, 2017
JUDGMENT
P.N.Ravindran, J.
The appellant is the defendant in O.S.No.18 of 2004 on the file of the Court of the Subordinate Judge of Mavelikara. The respondent is the plaintiff therein. The relief sought in O.S.No.18 of 2004, which was instituted on 14.1.2004, is to pass a decree for specific performance of Ext.A1 agreement entered into between the parties on 7.3.2003 to sell 12.90 Ares of land together with the building therein, for a total sale consideration of Rs.12,00,000/-.
stood posted for trial to 9.9.2009. Affidavits in lieu of chief examination sworn to by the plaintiff and two other witnesses on his side were also filed on 9.9.2009. However, as the learned counsel for the defendant submitted no instructions and the defendant was not present in person, he was set ex-parte, Exts.A1 to A11 produced by the plaintiff were marked, the plaintiff's evidence was closed,
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arguments in the suit were heard and an ex-parte decree was passed on 19.9.2009. The judgment delivered by the court below decreeing the suit ex-parte reads as follows:
“Suit is for specific performance of agreement for prohibitory injunction and in the alternative to realise the money paid as advance.
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execute the sale deed by this court. In the event of the aforesaid relief could not be granted allowing the plaintiff to realise Rs.11 lakhs from the defendant and his assets, creating a charge upon the plaint schedule property and for prohibitory injunction and also for the cost of the suit.
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was set exparte.
8. Heard.
Issues No.1 to 4:
These issues are considered jointly for the sake of convenience. Plaintiff has sworn to the proof-affidavit consistent with his version in the plaint and produced Ext.A1 to A11 in support of his case. The evidence tendered by the plaintiff stands unchallenged. I find no reason to discard the evidence of the plaintiff. Therefore I am of the opinion that the suit can be decreed.
Issue No.5:
In the result suit is decreed as follows:-
(a) The defendant is directed to execute a sale deed in respect of the plaint schedule property in favour of the plaintiff within one month, on deposit of the balance sale consideration of Rs.1 lakh by the plaintiff, failing which the plaintiff is entitled to get the sale deed executed through court.
(b) The defendant is restrained by a decree of prohibitory injunction from alienating the plaint schedule property to others other than the plaintiff or to induct strangers therein.
(c) The plaintiff is entitled to get the cost of the suit also.”
for an interim order of injunction restraining the defendant from alienating the plaint schedule property or from committing acts of waste therein. An interim order of injunction was passed on the said application and it was communicated to the defendant. He however transferred the plaint schedule property to his sister Ammukutty Daniel
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as per sale deed dated 11.12.2006. The plaintiff was not aware of this transfer. After the decree was passed on 19.9.2009, he filed E.P.No.98 of 2010 to execute the decree. Notice on the said application was served on the judgment debtor by affixture at his residence.
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was therefore adjourned to 1.3.2016. On that day also, learned counsel for the claimant was not present and consequently, C.R.P.No.88 of 2016 was dismissed for default, by order passed on 1.3.2016.
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the said affidavit prayed that I.A.No.363 of 2014 may be restored to file. The prayer in I.A.No.701 of 2015 was also to restore I.A.No.363 of 2014.
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with his employment and therefore he could not appear before the trial court when the suit was listed for trial. He has also averred in paragraph 5 that he was in Mumbai in connection with his work. In paragraph 6 he had averred that he came back to India from the Middle East in October, 2013 and immediately went to Mumbai. He had further averred in paragraph 6 that on 1.10.2014 while he was at home, he came to know from his neighbours that the decree holder is preparing to secure the plaint schedule property, that he made enquiries and came to know that the suit was decreed ex-parte. He had further averred that his counsel had informed him that a letter regarding listing of the suit for trial was sent to his residential address but the letter was not served on him and as a result he could not appear in the court and participate in the trial, that therefore he filed an application for setting aside the ex-parte decree and as there was delay in filing the application, he had filed a separate application for condoning the delay also. In paragraph 7 he had averred that the application to set aside the ex-parte decree was numbered as I.A.No.364 of 2014 and that later he was wrongly informed that the said application was dismissed for default. The affidavit proceeds to state that he thereupon made several applications on the trial and execution side and he could not get justice. He has further averred in paragraph 7 that he personally verified the filing register of the court
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below and came to know that I.A.No.364 of 2014 was filed in another case and that the application to set aside the ex-parte decree after condoning the delay was not filed due to an inadvertent mistake on the part of his counsel. It is on these averments that he prayed that the delay of 2318 days in filing I.A.No.166 of 2016 may be condoned. The very same averments were made in the affidavit filed in support of I.A.No.166 of 2016 as well. After considering the rival contentions, the court below dismissed the said applications by order passed on 11.4.2017, which is impugned in this appeal.
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the suit and had filed his written statement in the year 2004. The suit which was instituted in the year 2004 proceeded to trial only on 9.9.2009. The appellant has not pleaded or proved that he was at that point of time away in connection with his employment. Having regard to the point of time at which the suit stood listed for trial, it cannot be said that the appellant was denied an opportunity to participate in the trial. He had five years time at his disposal to get ready with the trial of the suit, even assuming that he had gone abroad in connection with his employment. It is relevant in this context to note that the appellant concedes the fact that he was in Mumbai as part of his employment. He has no case that he was unaware of the address of his counsel or his telephone number. Even assuming that he was abroad or at Mumbai, nothing prevented him from sending a letter to his counsel. In any case, he concedes that he came back from Middle East in October 2013. He had gone over to his home town on 1.10.2014. There is however no explanation from him as to why he did not take steps to file an application to set aside the ex-parte decree at least immediately thereafter. He has a case that an application which (I.A.No.363 of 2014 or 364 of 2014) had nothing to do with the instant suit had been filed to set aside the ex-parte decree. Our search of the case records also did not reveal such an application. It is now conceded that the said application was not filed in the instant
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suit, but in some other suit for which also there is no proof.
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by the court below. The explanation offered by the appellant for the long delay in filing the application to set aside the ex-parte decree is neither true nor tenable. The appellant has not in our opinion satisfactorily explained the long delay of 2318 days in filing the application to set aside the ex-parte decree. In such circumstances, we find no reason or justification to hold that the order impugned suffers from any infirmity.
We accordingly hold that there is no merit in the instant appeal. The appeal fails and is dismissed. No costs.
(P.N. Ravindran, Judge)
(Devan Ramachandran, Judge)
kav/
3 issues framed by the court
Whether the appellant satisfied the requirement of sufficient cause to condone the delay of 2318 days in filing an application to set aside an ex-parte decree.
Whether the High Court is justified in upholding the trial court's dismissal of condonation applications due to lack of sufficient cause for long delay.
Whether the appellant is entitled to relief in the appeal filed against the order dismissing his applications.
2 provisions across 1 enactments
Alexander
Babu
P.N.Ravindran
Devan Ramachandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
