Allowed

K.Bharathan @ Bharathan Menon, v. Puthiyaveettil Karippayil Aboobacker

Kerala HC24 Nov 2021FAO/70/2021

Case brief

AI extract

What is this about?

This appeal challenged a lower court order dismissing an application to set aside an ex parte decree. The appellant claimed he could not appear due to viral fever but failed to produce medical records. The High Court allowed the appeal, holding the rejection was erroneous and setting aside both the dismissal and the ex parte decree.

What did the court decide?

Order dated 08.06.2020 set aside; ex parte decree dated 19.09.2018 set aside; OS No.13 of 2016 restored.

K.Bharathan @ Bharathan Menon, Vs… — Civil Procedure and Limitation | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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WEDNESDAY,THE 24^TH DAY OF NOVEMBER 2021/3RD AGRAHAYANA,1943

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F.A.O NO. 70 OF 2021

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AGAINST THE ORDER DATED 08.06.2020 PASSED BY THE SUB COURT, CHAVAKKAD IN I.A NO.1534/2018 IN O.S.NO.13 OF 2016 APPELLANT/PETITIONER/2ND DEFENDANT:

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K.BHARATHAN @ BHARATHAN MENON, AGED 48 YEARS S/O. MULLAPPILLY BALAKRISHNAN, POONKUNNAM DESOM, POONKUNNAM P.O., THRISSUR VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT-680002.

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BY ADVS. SRI.DINESH MATHEW J.MURICKEN SRI.VINOD S. PILLAI SMT.SREELAKSHMI R. SRI.MOHAMMED THAYIB N.M. SMT.NAYANA VARGHESE SMT.ANSU SARA MATHEW

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RESPONDENTS/1 TO 6 RESPONDENTS, PLAINTIFFS, 1ST DEFENDANT AND 3RD SUPPLEMENTARY DEFENDANT:

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1 PUTHIYAVEETTIL KARIPPAYIL ABOOBACKER, AGE NOT KNOWN S/O. MOIDUNNY, PUTHIYAVEETTIL KARIPPAYIL HOUSE, PUNNA DESOM, MANATHALA AMSOM, CHAVAKKAD TALUK, THRISSUR DISTRICT-680506.

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2 AYISHA, AGE NOT KNOWN W/O.PUTHIYAVEETTIL KARIPPAYIL ABOOBACKER, PUTHIYAVEETTIL KARIPPAYIL HOUSE, PUNNA DESOM, MANATHALA AMSOM, CHAVAKKAD TALUK, THRISSUR DISTRICT-680506.

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F.A.O.No.70 of 2021

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3 AMINAKUTTY, AGED ABOUT 61 YEARS W/O. PUTHIYAVEETTIL KARIPPAYIL LATE ALIKUTTY, PERAKAM AMSOM AND DESOM, PERAKAM P.O., THRISSUR DISTRICT-680506.

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4 NESIRI, AGED 41 YEARS D/O. PUTHIYAVEETTIL KARIPPAYIL LATE ALIKUTTY, PERAKAM AMSOM AND DESOM, PERAKAM P.O., THRISSUR DISTRICT-680506.X

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5 MUHAMMED NESIM, AGED 39 YEARS S/O. PUTHIYAVEETTIL KARIPPAYIL LATE ALIKUTTY, PERAKAM AMSOM AND DESOM, PERAKAM P.O., THRISSUR DISTRICT-680506.

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6 NESMA, AGED 23 YEARS D/O. PUTHIYAVEETTIL KARIPPAYIL LATE ALIKUTTY, PERAKAM AMSOM AND DESOM, PERAKAM P.O., THRISSUR DISTRICT-680506, REPRESENTED BY HER GUARDIAN MOTHER, 3RD RESPONDENT, AMINAKUTTY, W/O. PUTHIYAVEETTIL KARIPPAYIL LATE ALIKUTTY, PERAKAM AMSOM AND DESOM, PERAKAM P.O., THRISSUR DISTRICT-680506.

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7 SREE NANDANAM HOTELS (P) LIMITED, THRISSUR, SHORNURY ROAD, THRISSUR VILLAGE AND TALUK, PIN-680002, REPRESENTED BY ITS MANAGING DIRECTOR, K. BARATHAN @ BARATHAN MENON, S/O. MULLAPPILLY BALAKRISHNAN, POONKUNNAM DESOM, POONKUNNAM P.O., THRISSUR VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT-680002.

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8 THESNI, AGED ABOUT 43 YEARS D/O. PUTHIYAVEETTIL KARIPPAYIL LATE ALIKUTTY, PERAKAM AMSOM AND DESOM, PERAKAM P.O., THRISSUR DISTRICT-680506.

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BY ADV. R1 TO R6 BY SRI.RANJIT

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THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 24.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

F.A.O.No.70 of 2021

J U D G M E N T

Anil K. Narendran, J

The appellant is the 2^nd defendant in O.S.No.13 of 2016 on the files of the Sub Court, Chavakkad filed by the respondents 1 to 6 herein-plaintiffs. The suit is one for recovery of money. Respondents 7 and 8 herein are defendants 1 and supplementary 3^rd defendant in that suit. The appellant filed I.A.No.1507 of 2018, an application to keep the proceedings in O.S.No.13 of 2016 in abeyance. That application was dismissed and the appellant and the 7^th respondent herein were set ex parte and an ex parte decree was also passed on 19.09.2018. The appellant filed I.A.No.1534 of 2018, an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 seeking an order to set aside the ex parte decree. That application is one filed within the period of limitation. The 5^th respondent herein filed objection opposing the relief sought for in that application. After considering the rival contentions, the court below by the order dated 08.06.2020, dismissed I.A.No.1534 of 2018 on the ground that the appellant has not produced any medical records to show that he was laid up due to viral fever on 19.09.2018. In the absence of any medical records stated in I.A.No.1534 of 2018, the court below found no reason to allow that

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F.A.O.No.70 of 2021

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interlocutory application. Feeling aggrieved, the appellant-2^nd defendant is before this Court in this appeal filed under Order XLIII, Rule 1(d) of the Code of Civil Procedure.

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On 28.10.2021, when this appeal came up for admission, this Court issued urgent notice on admission by special messenger to respondents, returnable by 05.11.2021. In I.A. No.1 of 2021, this court granted an interim stay of execution of the decree dated 19.09.2018 in O.S.No.13 of 2016 of the Sub Court, Chavakkad, for a period of three weeks. The said interim order was extended for a further period of three weeks on 16.11.2021.

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Heard the learned counsel for the appellant-2^nd defendant and also the learned counsel for respondents 1 to 6- plaintiffs. Despite service of notice, none appears for the respondents 7 and 8.

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The issue that arises for consideration in this appeal is as to whether any interference is warranted on the impugned order dated 08.06.2020 of the court below in I.A.No.1534 of 2018 in O.S.No.13 of 2016 whereby the application made by the appellant2^nd defendant for an order to set aside the ex parte decree stands rejected.

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The learned counsel for the appellant would contend that I.A.No.1534 of 2018 in O.S.No.13 of 2016 filed by the appellant

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invoking the provisions under Order IX Rule 13 of the Code is one filed within the period of limitation. Valid reason has been stated in the affidavit filed in support of that interlocutory application explaining the circumstances in which the 2^nd defendant did not appear in court on 19.09.2018. The learned counsel for the appellant would place reliance on the decisions of the Apex Court in G.P.Srivastava v. R.K.Raizada & others [(2000) 3 SCC 54] and also in M.K.Prasad v. P.Arumugam [(2001) 6 SCC 176] .

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Per contra, the learned counsel for respondents 1 to 6- plaintiffs would contend that only to protract the final disposal of O.S.No.13 of 2016, the appellant-2^nd defendant absented from the court on 19.09.2018. Though the application filed by the appellant, invoking the provisions under Order IX Rule 13 of the Code is within the period of limitation, the reason stated in the affidavit filed in support of that application is not at all sufficient for the court below to allow that application and it was in such circumstances, that application ended in dismissal by the impugned order.

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The Limitation Act, 1963 was enacted by the Parliament to consolidate and amend the law for the limitation of suits and other proceedings and for purposes connected therewith. Section 5 of the Act deals with extension of prescribed period in certain

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cases. As per Section 5, any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. As per Explanation to Section 5, the fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this Section.

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It is well settled that the Law of Limitation is founded on public policy to ensure that the parties to a litigation do not resort to dilatory tactics and seek legal remedy without delay. In an application filed under Section 5 of the Limitation Act, the court has to condone the delay if sufficient cause is shown. Adopting a liberal approach in condoning the delay is one of the guiding principles, but such liberal approach cannot be equated with a licence to approach the court-at-will disregarding the time limit fixed by the relevant statute. The acts of negligence or inaction on the part of a litigant do not constitute sufficient cause for condonation of delay. Therefore, in the matter of condonation of

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F.A.O.No.70 of 2021

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delay, sufficient cause is required to be shown, thereby explaining the sequence of events and the circumstances that led to the delay.

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9 . In Collector, Land Acquisition v. Katiji [(1987) 2

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SCC 107] , in the context of Section 5 of the limitation Act, 1963, the Apex Court held that, the expression ‘sufficient cause’ employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner, which subserves the ends of justice, that being the life-purpose for the existence of the institution of Courts.

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In Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649] the Apex Court while summerising the principles applicable while dealing with an application for condonation of delay held that, the concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. The Apex Court held further that, there is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal

F.A.O.No.70 of 2021

delineation.

Though the expression ‘sufficient cause’ employed in Section 5 of the Limitation Act, 1963 is adequately elastic to enable the courts to apply the law in a meaningful manner, which subserves the ends of justice, as held by the Apex Court in Katiji [(1987) 2 SCC 107] , the concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play, as held by the Apex Court in Esha Bhattacharjee [(2013) 12 SCC 649] . Inordinate delay, which attracts doctrine of prejudice, warrants strict approach, whereas, a delay of short duration or few days, which may not attract doctrine of prejudice, calls for a liberal delineation. An application for condonation of delay should be drafted with careful concern and no court shall deal with such an application in a routine manner.

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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

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F.A.O.No.70 of 2021

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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.

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In G.P. Srivastava v. R.K. Raizada [(2000) 3 SCC

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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

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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.

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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 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. For the absence of a party in the case the

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other side can be compensated by adequate costs and the lis decided on merits.

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In Peeves Enterprises v. Muhammed Ashraf [2015

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(3) KHC 981] , relying on the law laid down by the Apex Court in G.P. Srivastava , 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.

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In Robin Thapa v. Rohit Dora [(2019) 7 SCC 359] ,

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the Apex Court condoned the delay in filing application under Order IX Rule 13 of the Code of Civil Procedure, 1908, to set aside the ex-parte decree dated 09.10.2014 of Civil Judge, Senior Division, Dehradun. That application was filed on 02.10.2015, which was supported by an application for condonation of delay.

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The trial court condoned the delay and allowed the application to set aside the ex parte decree. That order was set aside by the High Court. On the facts of the case, the Apex Court noticed that the appellant came to be served with the notice of the execution proceedings through special messenger on 27.03.2015. Thus, the case of the appellant that he came to know about the passing of the decree only on 17.11.2015 cannot be acted upon. In the execution of the decree, sale deed has been executed in favour of the respondent and it is only thereafter that despite the receipt of the notice dated 27.03.2015, the appellant has set up the case that he came to know about the passing of decree only several months thereafter. Considering the fact that the matter arises from a suit for specific performance, which is undoubtedly a discretionary relief, and since the appellant was prepared to deposit the entire amount spent by the respondent for getting the sale deed executed, the Apex Court found that the interest of justice demands that subject to putting the appellant on terms, he should be given an opportunity to contest a case. Accordingly, the appeal was allowed and the impugned order was set aside subject to the conditions that the appellant will deposit a sum of Rs.67,400/- towards stamp duty and registration charges paid by

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the respondent, within a period of one month from the date of judgment, in the execution court and a further deposit of Rs.50,000/- as cost to be paid to the respondent. A reading of the judgment of the Apex Court would make it explicitly clear that the Apex Court has taken a lenient view considering the fact that the suit is one for specific performance and also the extent of delay, etc.

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Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that when I.A.No.1534 of 2018 in O.S.No.13 of 2016 was one filed by the appellant-2^nd defendant, within the period of limitation, the court below ought to have taken a lenient view and allowed that application. Since the reason stated in the affidavit filed in support of I.A.No.1534 of 2018 was that, on 19.09.2018, the appellant could not appear before court to give necessary instructions to his counsel for cross examination of the plaintiffs, since he was laid up due to viral fever, the Sub Court ought not to dismissed the application filed under Order IX Rule 13 of the Code of Civil Procedure, well within the period of limitation, on the ground of non-production of any medical records.

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In such circumstances, this appeal is allowed by setting

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aside the order dated 08.06.2020 in I.A.No.1534 of 2018 in O.S.No.13 of 2016. Consequently, the ex parte decree dated 19.09.2018 in O.S.No.13 of 2016 is set aside, thereby O.S.No.13 of 2016 is restored to file.

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Since the suit is of the year 2016, the court below shall finally dispose O.S.No.13 of 2016 as expeditiously as possible, at any rate, within a period of five months from the date of production of a certified copy of this judgment allowing I.A.No.1534 of 2018 as prayed for.

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Sd/-

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ANIL K.NARENDRAN JUDGE

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Sd/-

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P.G. AJITHKUMAR JUDGE

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K.Bharathan @ Bharathan Menon, v. Puthiyaveettil Karippayil Aboobacker

Case brief

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K.Bharathan @ Bharathan Menon, v. Puthiyaveettil Karippayil Aboobacker

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