Dismissed

K.P.Ahammed Kunji v. Sheela Pradeepan

Kerala HC2 Dec 2021FAO/72/2020

Case brief

AI extract

What is this about?

This appeal challenged the dismissal of applications to restore a civil suit for default and condone a delayed filing. The court held that the appellant had recurring instances of negligence and laches. Defendants were never served with notice to appear on the due date. Thus, the appeal was dismissed as devoid of merits.

What did the court decide?

Appeal dismissed with no costs to either party.

K.P.Ahammed Kunji Vs Sheela Pradeepan — Partition | 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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THURSDAY, THE 2^ND DAY OF DECEMBER 2021/11TH AGRAHAYANA,1943

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F.A.O.NO.72 OF 2020

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AGAINST THE ORDER DATED 07.11.2017 IN I.A.NOS.3861 & 3862 OF 2017 IN O.S.NO.461 OF 2013 OF THE PRINCIPAL SUB COURT, ERNAKULAM

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APPELLANT:

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K.P.AHAMMED KUNJI,

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AGED 71 YEARS, S/O.MUHAMMED MASTER, KESAVATHUPARAMBIL HOUSE, EDAPPALLY NORTH VILLAGE, ERNAKULAM-682 024, REP BY HIS SON AND POWER OF ATTORNEY HOLDER MOHAMMED SHAMEER, AGED 45 YEARS, KESAVATHUPARAMBIL HOUSE, EDAPPALLY NORTH VILLAGE, ERNAKULAM-682 024.

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BY ADV SRI.PEEYUS A.KOTTAM

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RESPONDENTS:

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1 SHEELA PRADEEPAN AGED 56 YEARS, W/O.LATE PRADEEPAN, S.N.V.HOUSE, MANNAM, PARAVUR P.O., NORTH PARAVUR, ERNAKULAM-683 520.

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2 K.P.SHILPA

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AGED 30 YEARS, D/O.LATE PRADEEPAN, S.N.V.HOUSE, MANNAM, PARAVUR P.O. NORTH PARAVUR, ERNAKULAM683 520.

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F.A.O.No.72 of 2020

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3 K.P.ANOOP AGED 27 YEARS, S/O.LATE PRADEEPAN, S.N.V.HOUSE, MANNAM, PARAVUR P.O. NORTH PARAVUR, ERNAKULAM-683 520.

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4 ARUN P.V., AGED 27 YEARS, S.N.V.HOUSE, MANNAM, PARAVUR P.O. NORTH PARAVUR, ERNAKULAM-683 520.

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5 JUSTINE AUGUSTINE AGED 41 YEARS, S/O.AUGUSTINE, VADAKKUMCHERY HOUSE, THURAVOOR P.O., ANGAMALY-683 572.

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6 TAJI JOVAKIM AGED 40 YEARS, W/O.AUGUSTINE, VADAKKUMCHERY HOUSE, THURAVOOR P.O., ANGAMALY-683 572. BY ADVS. R1 & R3 BY SRI.V.K.ISSAC R1 & R3 BY SRI.AYNOSH MICHAEL.P.S. R1 & R3 BY SMT.ARSHA K.J. R2 & R4 BY SRI.M.R.SASITH PANICKER R5 & R6 BY SRI.V.K.BALACHANDRAN R5 & R6 BY SMT.DRISHYA K.PRAKASH

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THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 15.11.2021, THE COURT ON 02.12.2021 DELIVERED THE FOLLOWING:

F.A.O.No.72 of 2020

J U D G M E N T

Ajithkumar, J

The appellant is the plaintiff in O.S.No.461 of 2013 on the files of the Subordinate Court, Ernakulam. The suit along with counter-claim was scheduled for trial including in the special list on 23.05.2017. The appellant was absent on that day and hence the Court dismissed the suit for default and passed an ex parte decree in the counter-claim. The appellant filed Interlocutory Application No.3862 of 2017 for restoring the suit on file and Interlocutory Application No.3861 of 2017 to condone the delay of 51 days. Both the applications were dismissed as per a common order dated 07.11.2017. This appeal has been preferred, challenging the said order.

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The suit was instituted for a decree directing the respondents by way of a mandatory injunction to convey the proportionate undivided share in the plaint schedule property in terms of an agreement executed between the parties on 15.03.2006. The appellant constructed an apartment complex in the property as per the said agreement and following the dispute arose with respect to the sale of proportionate share in the land where the construction was effected, the suit was

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filed. The suit was originally filed against one Sri.Pradeepan. He died and his legal representatives were impleaded, who are respondents 1 to 4 herein. The respondents 5 and 6 are subsequent purchasers. The respondents filed written statements disputing the appellant's right to get the conveyance deed executed. They also filed counter-claim for realisation of compensation on account of the delay caused in completing the construction.

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The appellant would contend that he, being an aged man having ailments, was unable to attend the court on 23.05.2017. He suffered a stroke and was undergoing follow up treatment. The learned counsel appearing for the appellant therefore contended that for the delay as well as non appearance on 23.05.2017, there was sufficient cause.

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The learned counsel appearing for respondents 1 to 4 as well as respondents 5 to 6 would submit that the suit was dismissed for default on 23.05.2017, not for the first time. Earlier occasions also the suit was dismissed for default and the counter-claim decreed ex parte. Thus they contended

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that at no point of time, the appellant was diligent in

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F.A.O.No.72 of 2020

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conducting the case and there is absolutely no reason for allowing the applications.

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It is an undisputed fact that in 2016, the suit was dismissed for default and the counter-claim decreed ex parte. At that time the suit was restored on the file and the ex parte decree in the counter-claim set aside accepting the appellants' contentions that he was unable to attend the court on account

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of the bodily infirmities in connection with the stroke. Thereafter, the case was listed for trial on 03.03.2017. On that day, the appellant did not appear before the court and got the case adjourned, producing a medical certificate dated 01.03.2017. The case was again taken up for trial on 23.05.2017 and the appellants failed to turn up resulting in passing of the default order/decree.

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The learned counsel appearing for the appellant placing reliance on the decisions Robin Thapa v. Rohit Dora [(2019) 7 SCC 359], Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and others [(2013) 12 SCC 649], State (NCT of Delhi) v. Ahmed Jaaan [(2008) 14 SCC 582], and Sangeetha v. Shibu

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F.A.O.No.72 of 2020

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K.K. [2019 KHC 219] contended that the order dismissing I.A.No.3862 of 2017, which was one for restoring the suit on file, and I.A.No.3861 of 2017, one for condonation of delay, is wrong and liable to be reversed. The learned counsel appearing for respondents 5 and 6, on the other hand, relying

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on Raj Kishore Pandey v. State of Uttar Pradesh and

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others [(2009) 2 SCC 692] contended that there was total inaction and negligence on the part of the appellant, and therefore, the learned Sub Judge rightly had dismissed the application.

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Order IX, Rule 8 of the Code of Civil Procedure, 1908 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

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relates to the remainder.

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F.A.O.No.72 of 2020

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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, and shall appoint a day for proceeding with the suit. As per sub-rule (2) of Rule 9, no order shall be made under this rule unless notice of the application has been served on the opposite party.

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

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359] the Apex Court held that, ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that, as far as possible, adjudication be done on merits.

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F.A.O.No.72 of 2020

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In Robin Thapa, the Apex Court condoned the

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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. 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

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F.A.O.No.72 of 2020

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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 the 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 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 only, the facts of that case and therefore, the ratio there is not available to the help of the appellant.

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The Apex Court in State (NCT)of Delhi (supra)

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after referring to a three Bench decision in O.P.Kathpalia v. Lakshmir Singh [(1984) 4 SCC 66] held that if the refusal to condone the delay results in grave miscarriage of justice, it

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would be a ground to condone the delay.

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In Esha Bhattacharjee (supra) also, the Supreme Court took a similar view. It was further explained 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 a strict approach whereas the second calls for a liberal delineation. The conduct, behavior and attitude of a party relating to his inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the

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name of liberal approach. If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

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13 . The decision in Sangeetha (supra) of this Court

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was relied on by the learned counsel for the appellant to contend that even in a case where long delay; in that case

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810 days, was there, this Court favoured condonation of delay by taking a lenient view. That was a case where the Family Court took the view that even though sufficient cause was not established satisfactorily, being a family dispute, interest of justice required to condone the delay on payment of cost. This Court, in the peculiar circumstances of that case, did not choose to upset the order of the Family Court.

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The learned counsel appearing for respondents 5 and 6 would contend that the counter-claim was decreed exparte and since that has not been challenged, there is no meaning in allowing these applications. He submits that restoration of the suit on file does not have the effect of rescinding the exparte decree in the counter-claim. In Plantation Corporation of Kerala Ltd. v. Hussain [1998 (1) KLT 1008] this Court held that a counter-claim should be treated as a plaint and governed by the rules applicable to plaints. Therefore, it is correct to say that restoration of the suit on file does not result in setting aside of the exparte decree and restoration of the counter-claim on file. Both matters are distinct requiring independent consideration. The

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learned Counsel appearing for the appellant submitted that he already filed I.A.Nos.1167 and 1168 of 2017 for setting aside the ex parte decree in the counter-claim and to condone delay, which are pending consideration of the Sub Court. In view of that matter this appeal has to be considered independently.

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It is true, in the light of the principles culled out from the above decisions, that the court should always take a stand so as to enable the parties to have their dispute decided on its merits. That does not, however, mean that every order dismissing a suit for default and every decree passed exparte has to be set aside on mere asking. Facts of this case require differential consideration. More than once, the suit was dismissed for default. Of course, on the earlier occasions, order dismissing the suit for default and passing an ex parte decree in the counter-claim was set aside. Having the fault on the part of the appellant at that time been condoned, the same should not be a reason now to dismiss the applications. At the same time, the recurring instances of lapse and laches

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on the part of the appellants, in the circumstances of the

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case, amounted to total negligence disentitling the appellant to get the delay condoned and to get the suit restored on file.

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The appellant was never prompt in prosecuting the suit. When the suit was dismissed in 2016, he got it restored for the reason of his inability to come to court on account of a stroke he had to suffer. On 03.03.2017 also, the same reason was stated and got the case postponed to 23.05.2017. On that day, he did not come to the court nor did he care to submit an application for adjournment. When I.A.Nos.3861 of 2017 and 3862 of 2017 were filed, a certificate obtained on 01.03.2017 was placed reliance on. The appellant, however, did not adduce any evidence. He did not care to prove the certificate dated 01.03.2017. The assertions of the appellant in the affidavit filed in support of his applications were categorically denied by the respondents by filing counter affidavits. It was the burden of the appellant to adduce evidence to prove that his contentions were true and there really existed reasons preventing him from appearing in court on 23.05.2017. In the absence of any evidence, even by taking the most liberal approach, it cannot be found that there

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was sufficient cause for his non appearance and also for the delay in submitting the application. In that view of the matter, if the applications are allowed that will amount to dragging of the respondents to endless litigation and total injustice to them.

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In such circumstances, we hold that this appeal is devoid of any merits. Appeal is dismissed. No costs.

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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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pv/dkr

K.P.Ahammed Kunji v. Sheela Pradeepan

Case brief

What is this about?

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K.P.Ahammed Kunji v. Sheela Pradeepan

Case brief

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