IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
OP(C) NO. 1983 OF 2021
AGAINST THE COMMON ORDER DATED 09.07.2021 IN IA 1/2020 IN CMA NOS.23
AND 24/2020 ON THE FILE OF THE PRINCIPAL DISTRICT COURT,KOZHIKODE AND
CONSEQUENTIAL DISMISSAL OF THE CMAS.
PETITIONER:
MUHAMMED ALI OTTAPPOKKIL
AGED 58 YEARS
S/O.ASSAIN HAJI, EDAKANDIYIL,
KAJIRATHUMPOYIL HOUSE, SOUTH KODUVALLY, KODUVALLOY AMSOM
DESOM, THAMARASSERY TALUK,
KOZHIKODE,PIN-673572.
BY ADV E.NARAYANAN
RESPONDENT:
ASHRAF E.K
AGED 50 YEARS
S/O.ASSAIN HAJI EDAKADIYIL,
KANJIRATHUMPOYIL HOUSE,
SOUTH KODUVALLY, KODUVALY AMSM DESOM, THAMARASSERY TALUK,
KOZHIKODE, PIN-673572.
SRI. NABIL KHADER
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14.06.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO. 1983 OF 2021 2
JUDGMENT
The Original Petition is filed to set aside the common order in I.A Nos 648/2019 and 649/2019 in O.S No.57/2016 (Ext.P6) of the Court of the Principal Munsiff -I, Kozhikode and the orders in C.M.A No.23/2020 (Exts.P13 to P16) passed by the learned Principal District Judge, Kozhikode.
2. The concise case of the petitioner, shorn of exhaustive pleadings, in the original petition is that, he is the plaintiff in the above suit, which is filed against the respondent, seeking a decree of permanent prohibitory injunction, to restrain the respondent from trespassing into the plaint schedule property. The suit was listed for trial on 07.09.2018. As the petitioner was held up in Saudi Arabia, he could not attend the trial. Even though he had filed an application to remove the case from the list, the same was dismissed. The petitioner returned to India on OP(C) NO. 1983 OF 2021 3 06.12.2018 and filed Exhibit P2 and P4 applications to restore the suit and condone the delay in filing the restoration application. The applications were opposed by the respondent who filed Exhibit P3 and P5 counter affidavits. The Trial Court without considering Exhibits P2 and P4 in its proper perspective, dismissed Exhibits P2 and P4 applications by Exhibit P6 common order. Challenging Exhibit P6, the petitioner filed C.M.A No.23/2020 before the Court of the Principal District Judge, Kozhikode. The learned District Judge, without appreciating the materials on record, by the impugned Exhibits P13 to P16 orders, dismissed the appeal. Exhibit P6 and P13 to P16 are erroneous and wrong. Hence, the original petition.
3. Heard; Sri.E.Narayanan, the learned counsel appearing for the petitioner and Sri.Nabil Khader, the learned counsel appearing for the respondent.
4. The short point that arises for consideration in this original petition is whether there is any illegality or OP(C) NO. 1983 OF 2021 4 irregularity in Exts.P6, P13 to P16 orders passed by the court below?
5. Ext.P1 plaint was instituted by the petitioner, inter alia, seeking a decree of permanent prohibitory injunction to restrain the respondent from trespassing into the plaint schedule property. It is not disputed that the petitioner had filed an application to remove the case from the special list. Nevertheless, the court below dismissed the application for default. Challenging the said order, the petitioner filed Exhibits P2 and P4 applications to restore the suit to file and to condone the delay of 140 days in filing Exhibit P2. However, the Trial court by impugned Exhibit P6 order, on the finding that the petitioner has not made out sufficient cause to condone the delay of 140 days, dismissed the application. Consequently, the restoration application was also dismissed. Even though the petitioner challenged Exhibit P6 order before the appellate court in C.M.A No.23/2020, the appellate court also found that the OP(C) NO. 1983 OF 2021 5 cause that was put forth by the petitioner was insufficient to condone the delay of 140 days. Resultantly, the appellate court also confirmed Exhibit P6 order passed by the court below.
6. In G.P.Srivastavav.R.K.Raizada & Others [2000 KHC 1023] the Hon'ble Supreme Court has held that the crucial aspect to be considered in an application filed under Order IX of the Code of Civil Procedure (Code) is whether the defendant has made out 'sufficient cause' for his non- appearance on the date the case was posted. The court is not bound to look into the antecedents of the defendant against whom an ex parte order/decree is passed.
7. On a perusal of the averments in the affidavit in support of Exhibit P2 application, that is to condone the delay of 140 days, the petitioner has categorically deposed that he was employed in Saudi Arabia and he was prevented from travelling to India on the date the suit was listed for trial. It is also on record that the petitioner had OP(C) NO. 1983 OF 2021 6 moved an application to remove the case from the list. Nevertheless, Trial Court declined to remove the case from the list and dismissed the same for default.
8. A reading of Exhibit P13 order passed by the appellate court, shows that the appellate court has also gone into the antecedents of the petitioner in prosecuting the case.
9. In G.P.Srivastava (supra), the Hon'ble Supreme Court has empathetically held that 'sufficient cause' contemplated under Order IX of the Code has to be liberally construed, so as to enable the Court to do complete justice between the parties. The term 'sufficient cause' is an elastic expression for which there is no hard and fast rule. The Court is to be given a wide discretion in deciding what is 'sufficient case'.
10. In Robin Thapa v. Rohit Dora [2019 KHC 6641], the Hon'ble Supreme Court has held that, ordinarily a OP(C) NO. 1983 OF 2021 7 litigation is based on adjudication on the merit of the contention of the parties and litigation may not be terminated by default of either the plaintiff or the defendant. The cause of justice does require that, as far as possible, adjudication be done on merits.
11. In the light of the pleadings and the averments in Exhibit P2 application, I find that the petitioner has stated sufficient cause to condone the delay of 140 days, which had to be liberally considered and decided by the court below. Nevertheless, both the courts have taken a hyper - technical stand and declined to condone the delay of 140 days. According to me, the prejudice caused to the respondent can be compensated by directing the petitioner to pay a reasonable amount as cost. Even though, I do not approve the attitude of the petitioner in protracting the determination of the suit, I am of the view that the matter can be given a quietus, especially taking note of the fact that the suit is of the year, 2016, by OP(C) NO. 1983 OF 2021 8 directing the court below to consider and dispose of the same within a time frame.
12. On a comprehensive consideration of the pleadings and materials on record, the law laid down in the aforecited decisions, I am inclined to exercise the supervisory jurisdiction of this Court under Article 227 of the Constitution of India and set aside Exhibits P6 and P13 to P16 orders subject to the following conditions:-
In the result, the original petition is allowed in the following manner:
(i) Exhibit P6 and P13 to P16 of the Court of the Principal Munsiff -I, Kozhikode and the orders of the Principal District Court, Kozhikode are set aside, on condition that the petitioner deposits an amount of Rs.10,000/- as cost before the Trial Court within a period of two weeks from the date of receiving the certified copy of this judgment.
OP(C) NO. 1983 OF 2021 9
(ii) If condition No.(i) is complied with by the petitioner, Exhibit P6 and P13 to P16 will stand set aside and O.S. No.57/2016 shall stand restored to file. Then the parties shall mark their appearance before the Trial Court on 11.07.2022
(iii) The deposited amount shall be released to the respondent in accordance with law.
(iv) On a consideration of the fact that the suit is of the year 2016, the Trial Court shall make every endeavour to consider and dispose of O.S. No.57/2016, in accordance with law, as expeditiously as possible, at any rate, on or before 31.03.2023.
(iv) It is made clear that, if the petitioner does not comply with the condition No. (i), Exhibit P6 and P13 to P16 shall stand confirmed.
Sd/-
C.S.DIAS JUDGE rmm/14/06/2022 OP(C) NO. 1983 OF 2021 10 APPENDIX OF OP(C) 1983/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PLAINT IN O.S.NO.57/2016 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT- I, KOZHIKODE.
Exhibit P2 TRUE COPY OF THE I.A.NO.648/2019 IN O.S.NO.57/2016 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT-I, KOZHIKODE.
Exhibit P3 TRUE COPY OF THE COUNTER IN I.A.NO.648/2019 IN O.S.NO.57/2016 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT-I, KOZHIKODE. Exhibit P4 TRUE COPY OF THE I.A.NO.649/2019 IN O.S.NO.57/2016 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT-I, KOZHIKODE.
Exhibit P5 TRUE COPY OF THE COUNTER IN I.A.NO.649/2019 IN O.S.NO.57/2016 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT-I, KOZHIKODE Exhibit P6 TRUE COPY OF THE COMMON ORDER IN I.A.648/2019 AND I.A.NO.649/2019 IN O.S.NO.57/2016 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT-I, KOZHIKODE Exhibit P7 TRUE COPY OF C.M.A.NO.23/2020 ON THE FILE OF THE PRINCIPAL DISTRICT COURT, KOZHIKODE Exhibit P8 TRUE COPY OF I.A.NO.1/2020 TO CONDONE THE DELAY IN FILING THE C.M.A.NO.23/2020 ON THE FILE OF THE PRINCIPAL DISTRICT COURT, KOZHIKODE Exhibit P9 TRUE COPY OF THE COUNTER IN I.A.NO.1/2020 IN C.M.A.23/2020 ON THE FILE OF THE PRINCIPAL DISTRICT COURT, KOZHIKODE Exhibit P10 TRUE COPY OF C.M.A.NO.24/2020 ON THE FILE OP(C) NO. 1983 OF 2021 11 OF THE PRINCIPAL DISTRICT COURT, KOZHIKODE Exhibit P11 TRUE COPY OF I.A.1/2020 TO CONDONE THE DELAY IN FILING THE C.M.A.NO.24/2020 ON THE FILE OF THE PRINCIPAL DISTRICT COURT, KOZHIKODE Exhibit P12 TRUE COPY OF THE COUNTER IN I.A.NO.1/2020 IN C.M.A.NO.24/2020 ON THE FILE OF THE PRINCIPAL DISTRICT COURT, KOZHIKODE Exhibit P13 THE CERTIFIED COPY OF THE ORDER DT 9.7.21 IN I.A.1/2020 IN CMA NO.23/20 ON THE FILE OF THE PRINCIPAL DISTRICT COURT, KOZHIKODE. Exhibit P14 THE TRUE COPY OF THE JUDGMENT DT.09.07.2021 IN CMA NO.23/20 ON THE FILE OF THE PRINCIPAL DISTRICT COURT, KOZHIKODE. Exhibit P15 THE COPY OF THE ORDER DT.9.7.21 IN I.A.NO.01/2020 IN CMA NO.24/20 ON THE FILE OF THE PRINCIPAL DISTRICT COURT, KOZHIKODE. Exhibit P16 THE TRUE COPY OF THE JUDGMENT DATED DT.09.7.2021 IN CMA NO.24/20 ON THE FILE OF THE PRINCIPAL DISTRICT COURT, KOZHIKODE. EXHIBIT P17 TRUE COPY OF THE PHOTOGRAPH SHOWING THE ILLEGAL ACTIVITIES OF THE RESPONDENT IN THE PLAINT SCHEDULE PROPERTY