Sarada Amma vs Rajeev Kumar
2021 Latest Caselaw 22577 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
       THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                  &
        THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 19TH DAY OF NOVEMBER 2021/28TH KARTHIKA, 1943
                      FAO NO. 68 OF 2021
  AGAINST THE ORDER DATED 10.09.2021 IN R.P.I.A.NO.3 OF
    2019 IN O.S.NO.9 OF 2015 OF SUB COURT, KOYILANDI
APPELLANT/PETITIONER/DEFENDANT:

            SARADA AMMA
            AGED 72 YEARS
            W/O.GANGADHARAN MARAR, PRASADAM (H), PANANGAD
            AMSOM, NIRUMALLUR DESOM, KOYILANDY TALUK,
            KOZHIKODE.

            BY ADVS.
            M.PROMODH KUMAR
            MAYA CHANDRAN


RESPONDENT/RESPONDENT/PLAINTIFF:

            RAJEEV KUMAR, AGED 49 YEARS
            S/O.BALAKRISHNAN NAIR, KAIRALI NAGAR, HOUSE
            NO.24/84, VENGERI AMSOM, NEDUNGOTTOOR DESOM,
            KOZHIKODE TALUK - 670 010.

            BY ADVS.T.K.SANDEEP
            ARJUN SREEDHAR
            ARUN KRISHNA DHAN


     THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR
ADMISSION    ON   19.11.2021,   THE     COURT   ON   THE   SAME   DAY
DELIVERED THE FOLLOWING:
                                  -2-

FAO NO. 68 OF 2021




                           JUDGMENT

Anil K. Narendran, J.

The appellant, who is a senior citizen aged 72 years, is

the defendant in O.S.No.9 of 2015 on the file of the Sub

Court, Koyilandi, a suit for specific performance of contract

dated 30.04.2014, which was subsequently amended as one

for return of the advance amount. The appellant filed written

statement contending that the contract failed due to non

performance of obligation by the plaintiff and she has to suffer

huge loss. She prayed for adjustment of the advance amount

towards the damages she sustained.

2. On 08.10.2018, when the suit was listed for trial,

the petitioner's son, Prasanth, applied for adjournment since

she was laid up. Later, she was set ex-parte and an ex-parte

decree dated 11.10.2018 has also been passed. By that time,

her son, Prasanth, moved to Perinthalmanna and the

petitioner alone was residing at her house. On recovery from

her illness, she filed R.P.I.A.No.3 of 2019 for setting aside the

ex parte decree, under Order IX, Rule 13 of the Code of Civil

FAO NO. 68 OF 2021

Procedure, 1908. She has also filed I.A.No.649 of 2019 for

condonation of delay of 402 days in filing R.P.I.A.No.3 of

2019, under Section 5 of the Limitation Act, 1963.

3. In the memorandum of appeal, it is stated that,

after filing of the aforesaid interlocutory applications, her son,

who was infected with Covid and admitted in MIMS Hospital,

Kozhikkode, died on 05.07.2021. She was also infected with

Covid. By the order dated 02.09.2021 in I.A.No.649 of 2019 in

I.A.No.3 of 2019 in O.S.No.9 of 2015, the court below

condoned the delay of 402 days, on payment of a cost of

Rs.5,000/-. By the order dated 03.09.2021 in R.P.I.A.No.3 of

2019, the court below set aside the ex-parte decree on

payment of a cost of Rs.15,000/-. The appellant was directed

to pay the cost on or before 10.09.2021.

4. Since the appellant could not pay cost within the

time limit stipulated in that order, the court below dismissed

R.P.I.A.No.3 of 2019 by the order dated 10.09.2021. Feeling

aggrieved, the appellant is before this Court in this appeal

filed under Order XLIII Rule 1(d) of the Code of Civil

Procedure.

FAO NO. 68 OF 2021

5. On 22.10.2021, when this appeal came up for

admission, this Court admitted the matter on file and issued

notice to the respondent, returnable within four weeks. This

Court granted an interim stay of the execution of decree in

O.S.No.9 of 2015 in Sub Court, Koyilandi, for a period of one

month.

6. Heard the learned counsel for the appellant-

defendant and also the learned counsel for the respondent-

plaintiff.

7. The issue that arises for consideration in this

appeal is as to whether any interference is warranted on the

order dated 02.09.2021 of the Sub Court, Koyilandi in

I.A.No.649 of 2019 in R.P.I.A.No.3 of 2019 in O.S.No.9 of

2015 and the order dated 03.09.2021 in R.P.I.A.No.3 of 2019.

8. Order IX, Rule 13 of the Code of Civil Procedure

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

FAO NO. 68 OF 2021

served, or that he was prevented by any 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.

FAO NO. 68 OF 2021

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

SCC 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 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.

10. 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

FAO NO. 68 OF 2021

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

other side can be compensated by adequate costs and the lis

decided on merits.

11. In Peeves Enterprises v. Muhammed Ashraf

[2015 (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

FAO NO. 68 OF 2021

inconvenience caused to him. But any such condition shall not

be too onerous.

12. During the course of arguments, the learned

counsel for the appellant would submit that the delay in filing

the application to set aside the ex parte decree, invoking the

provisions under Order IX Rule 13 of the Code, occurred for

the reasons stated in the affidavit filed in support of

I.A.No.649 of 2019, the application filed under Section 5 of

the Limitation Act. During the pendency of the aforesaid

interlocutory applications, the appellant lost her son, who was

conducting her case before the court below, due to Covid. He

died on 05.07.2021. The appellant was also infected with

Covid.

13. Having considered the submissions made by the

learned counsel on both sides, this Court finds that though the

court below by the order dated 02.09.2021 condoned the

delay of 402 days in filing the application to set aside the ex-

parte decree, on payment of a cost of Rs.5,000/-, which was

followed by the order dated 03.09.2021 setting aside the ex-

parte decree dated 11.10.2018, on payment of a cost of

FAO NO. 68 OF 2021

Rs.15,000/-, the appellant could not remit the said amount on

or before 10.09.2021, which had resulted in the dismissal of

the application to set aside the ex-parte decree, i.e.,

R.P.I.A.No.3 of 2019 in O.S.No.9 of 2015, by the order dated

10.09.2021. Considering the fact that the appellant, who is a

senior citizen aged 72 years, lost her son on 05.07.2021 due

to Covid and that, she was also infected with Covid, taking a

lenient view, we deem it appropriate to set aside the order

dated 10.09.2021 in R.P.I.A.No.3 of 2019 in O.S.No.9 of 2015

and allow that application on payment of a cost of Rs.5,000/-,

in addition to the cost of Rs.5,000/- ordered on 02.09.2021 in

I.A.No.649 of 2019 for the condonation of delay of 402 days.

On payment of a cost of Rs.10,000/- (5,000 + 5,000) to the

respondent-plaintiff, within a period of three weeks from the

date of receipt of a certified copy of this judgment,

R.P.I.A.No.3 of 2019 and also the connected interlocutory

application, i.e., I.A.No.649 of 2019, will stand allowed and

consequently, the ex-parte decree dated 11.10.2018 in

O.S.No.9 of 2015 will stand set aside. Thereafter, the Sub

Court shall proceed with O.S.No.9 of 2015 and dispose of the

FAO NO. 68 OF 2021

same, as expeditiously as possible, at any rate, within a

period of five months.

14. Both parties shall appear before the court below on

20.12.2021.

The appeal is allowed as above.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE AV/20/11

FAO NO. 68 OF 2021

APPENDIX OF FAO 68/2021

PETITIONER ANNEXURES

ANNEXURE 1 THE CERTIFIED COPY OF THE ORDER IN R.P.I.A.NO.3/2019 DATED 10/09/2021 IN O.S.NO.9/2015 OF SUBORDINATE JUDGE DATED 03/09/2021.

ANNEXURE 2 THE CERTIFIED COPY OF THE ORDER IN IA 649/2019 IN OS 9/2015 DATED 02/09/2021.