Kerala High Court
Jisha.M.J vs Anil J.Rao on 8 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR.JUSTICE K. BABU
WEDNESDAY, THE 8TH DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943
F.A.O. NO. 44 OF 2020
AGAINST THE ORDER DATED 10.07.2019 IN I.A. NO.2002 OF 2018 IN O.S.
NO.24 OF 2018 OF THE FILE OF THE ADDITIONAL SUBORDINATE COURT -II ,
KOZHIKODE.
APPELLANT/S:
JISHA.M.J,
AGED 33 YEARS,
W/O. MAHESH, MEPPANGAD,
KARANNOOR DESOM,
ELATHUR VILLAGE, ERANHIKKAL P.O.,
KOZHIKODE-673 303.
BY ADV T.D.SUSMITH KUMAR
RESPONDENT/S:
1 ANIL J.RAO,
AGED 34 YEARS,
S/O. JAIDEV RAO, SWARGHAMADAM,
SAMOOHAM ROAD, CHALAPPURAM ROAD,
KOZHIKODE - 673 002.
2 ANITHA BALIGA B,
AGED 29 YEARS,
D/O. JAIDEV RAO, SWARGHAMADAM, SAMOOHAM ROAD,
CHALAPPURAM ROAD, KOZHIKODE - 673 002.
(PRESENTLY RESIDING AT FLAT NO.105,
GAYATHREE PEARL APARTMENT, 2ND MAIN,
2ND CROSS, SABABOUMANAGAR, DELEKAHALLI,
BANGALORE, KARNATAKA - 560 076).
BY ADV SMT.VIJAYAKUMARI
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON
08.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
F.A.O. NO. 44 OF 2020
2
JUDGMENT
Anil K. Narendran, J.
The appellant, who is the defendant in O.S. No.24 of
2018 on the file of the Additional Subordinate Judge's Court-
II, Kozhikode, has filed this appeal under Order XLIII Rule
1(d) of the Code of Civil Procedure, 1908, challenging the
order dated 10.07.2019 of the said court in I.A. No.2002 of
2018 in O.S. No. 24 of 2018, whereby that application filed
under Order IX Rule 13 of the Code of Civil Procedure to set
aside the ex parte decree dated 04.10.2018 in O.S.No.24 of
2018 stands rejected, on account of non-payment of cost.
2. Though this appeal was filed on 19.09.2019, there
occurred some delay in representing the appeal after curing
the defects. By the order dated 10.03.2020 in C.M.
Application No. 1 of 2020, the delay of 106 days in re-
presenting the appeal was condoned. Thereafter on
13.03.2020, this Court issued notice by special messenger
to the respondents. On 20.03.2020 in I.A. No.2 of 2020, this
Court granted an interim stay of all further proceedings in
F.A.O. NO. 44 OF 2020
execution of the decree in O.S.No.24 of 2018 up to
07.02.2020. The said interim order was further extended for
a period of four months on 17.02.2021.
3. Heard the learned counsel for the appellant and
also the learned counsel for the respondents.
4. The issue that arises for consideration in this
appeal is as to whether any interference is warranted in the
order dated 10.07.2019 of the court below in I.A. No.2002
of 2018 in O.S. No.24 of 2018.
5. O.S. No. 24 of 2018 was one filed by the plaintiff
for specific performance, with an alternative decree for
return of advance sale consideration. Though the defendant
entered appearance on 09.03.2018, she has not chosen to
file a written statement. During the pendency of that suit,
the original plaintiff died and therefore, her legal heirs were
impleaded as supplemental plaintiffs 2 and 3 by the order in
I.A. No.1070 of 2018. In that suit the trial court passed an
ex parte decree dated 04.10.2018, whereby the relief for
specific performance was disallowed and the defendant was
F.A.O. NO. 44 OF 2020
directed to pay an amount of Rs.15,00,000/-(Rupees fifteen
lakhs only) to the plaintiffs together with six percent interest
commencing from 03.02.2017, till the date of realisation. In
the judgment, the trial court has made it clear that there
shall be a charge in respect of the amount decreed or plaint
schedule property under Section 55(6)(b) of the Transfer of
Property Act, 1882. The plaintiffs was also found entitled for
cost of the suit.
6. The defendant filed I.A. No.2 of 2018, an
application under Order IX Rule 13 of the Code of Civil
Procedure, seeking an order to set aside the ex parte decree
passed against her on 04.10.2018. In the application, it was
stated that she could not file written statement within the
time limit granted by the court, since she was suffering from
back ache problem. She produced a medical prescription
dated 18.09.2018 and a medical certificate dated
11.10.2018 to substantiate her contention. That application
was opposed by the plaintiff pointing out that the defendant
had appeared in the court on 23.03.2018 and availed nine
F.A.O. NO. 44 OF 2020
postings till 24.09.2018. She failed to file written statement,
which prompted the court to proceed against her as ex
parte. It was also contented that the medical reasons
projected in the petition is not just and sufficient to set aside
the ex parte decree passed against the defendant.
7. After considering the rival contentions, the trial
court found that the medical prescription dated 18.09.2018
and the medical certificate dated 11.10.2018, which are
indicating about the back ache problems and surgery
advised to the petitioner are not sufficient to hold that she
was totally unfit to contact her counsel and file written
statement within the time allowed by the court. Though the
explanation offered by the defendant was not satisfied, the
trial court set aside the ex parte decree on awarding a cost
of Rs.3,000/-(Rupees three thousand only) and by directing
the defendant to file written statement within 15 days of
passing of the order.
8. The condition stipulated in the aforesaid order was
not complied with by the defendant. On 10.07.2019, when
F.A.O. NO. 44 OF 2020
I.A. No.2002 of 2018 came up for consideration, there was
no representation for the defendant. The defendant has also
not paid the cost. It was in such circumstances, that the trial
court by the impugned order dated 10.07.2019, dismissed
I.A. No.2002 of 2018.
9. The cost ordered by the Rent Control Court, in a
suit filed for specific performance of an agreement of
property with an advance sale consideration of 15,00,000/-
cannot be said to be on the higher side. Though, the trial
court has shown indulgence to the appellant-defendant by
allowing I.A.No.2002 of 2018 on payment of a cost of
Rs.3,000/-, the defendant has not chosen to comply with
that condition. She has also not chosen to file written
statement in the suit, within the time limit stipulated
therein.
In such circumstances, we find that no reason to
interfere with the impugned order dated 10.07.2019 of the
trial court in dismissing I.A. No.2002 of 2018 in O.S. No.24
of 2018.
F.A.O. NO. 44 OF 2020
In the result, this appeal fails and the same is
accordingly dismissed.
Sd/-
ANIL K.NARENDRAN,
JUDGE
Sd/-
K. BABU,
JUDGE
MIN
