Muhammed Ali Ottappokkil vs Ashraf E.K
2022 Latest Caselaw 6751 Ker

                 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. 1985 OF 2021
AGAINST THE COMMON ORDER DATED 09.07.2021 IN IA 1/2020 IN CMA 21/2020
     AND 22/2020 OF THE PRINCIPAL DISTRICT COURT, KOZHIKODE AND
                 CONSEQUENTIAL DISMISSAL OF THE SAID CMAS
PETITIONER:

              MUHAMMED ALI OTTAPPOKKIL
              AGED 58 YEARS
              S/O.ASSAIN HAJI, EDAKANDIYIL, KANJIRATHUMPOYIL HOUSE,
              SOUTH KODUVALLY, KODUVALLY AMSOM DESOM, THAMARASSERY
              TALUK, KOZHIKODE, PIN - 673 572.

              BY ADV E.NARAYANAN



RESPONDENTS:

     1        ASHRAF E.K.
              AGED 50 YEARS
              S/O.ASSAIN HAJI EDAKADIYIL, KANJIRATHUMPOYIL HOUSE, SOUTH
              KODUVALLY, KODUVALLY AMSOM DESOM, THAMARASSERY TALUK,
              KOZHIKODE, PIN - 673 572.

     2        FASAL @ MUTHU
              AGED 25 YEARS
              S/O.MUHAMMED ALI, KANJIRATHAMPOYIL HOUSE, SOUTH
              KODUVALLY, KODUVALLY AMSOM DESOM, THAMARASSERY TALUK,
              KOZHIKODE, PIN - 673 572.

              BY ADVS.
              N.V.MUHAMMED BASHEER
              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. 1985 OF 2021               2




                             JUDGMENT

The Original Petition is filed to set aside the common

order in I.A Nos 607/2019 and RPIA No.608/2019 in O.S

No.59/2016 (Ext.P6) of the Court of the Principal Munsiff -

I, Kozhikode and the orders in C.M.A No.21/2020 (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 first defendant in the above suit, which is filed by the

first respondent, seeking a decree of permanent

prohibitory injunction, to restrain the petitioner and second

respondent- second defendant from trespassing into the

plaint schedule property and committing waste and for

damages. The suit was listed for trial on 18.09.2018. 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.

Later on 28.09.2018 an ex-parte decree was passed. The

petitioner returned to India on 06.12.2018 and filed Exhibit

P4 and P2 applications to set aside the ex-parte decree and

to condone the delay in filing Exhibit P4 application. The

applications were opposed by the respondent who filed

Exhibit P3 and P5 counter affidavits. The Trial Court

without considering Exhibits P4 and P2 in its proper

perspective, dismissed the applications by Exhibit P6

common order. Challenging Exhibit P6, the petitioner filed

C.M.A No.21/2020 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 respondents.

4. The short point that arises for consideration in

this original petition is whether there is any illegality or

irregularity in Exts.P6, P13 to P16 orders passed by the

court below?

5. Ext.P1 plaint was instituted by the first

respondent, inter alia, seeking a decree of permanent

prohibitory injunction to restrain the petitioner and the

second 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

and set the petitioner ex-parte. Challenging the said order,

the petitioner filed Exhibits P4 and P2 applications to set

aside the ex-parte decree and to condone the delay of 130

days in filing Exhibit P4. 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 130 days, dismissed the application. Consequently,

an ex-parte decree was passed. Even though the petitioner

challenged Exhibit P6 order before the appellate court in

C.M.A No.21/2020, the appellate court also found that the

cause that was put forth by the petitioner was insufficient

to condone the delay of 130 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 P4 application, that is to condone the

delay of 130 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

moved an application to remove the case from the list.

Nevertheless, the Trial Court declined to remove the case

from the list and dismissed the application and set the

petitioner ex-parte.

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

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 130 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 130

days in filing Exhibit P4. According to me, the prejudice

caused to the first 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

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 of 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.

(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.59/2016 shall stand restored to file to

permit the petitioner to contest the suit on merits. Then

the parties shall mark their appearance before the Trial

Court on 11.07.2022

(iii) The deposited amount shall be released to the

first 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.59/2016,

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

APPENDIX OF OP(C) 1985/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE PLAINT IN O.S.NO.59/2016 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT- I, KOZHIKODE.

Exhibit P2 TRUE COPY OF THE I.A.NO.607/2019 IN O.S.NO.59/2016 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT-I, KOZHIKODE.

Exhibit P3 TRUE COPY OF THE COUNTER IN I.A.NO.607/2019 IN O.S.NO.59/2016 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT-I, KOZHIKODE.

Exhibit P4 TRUE COPY OF THE I.A.NO.608/2019 IN O.S.NO.59/2016 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT-I, KOZHIKODE.

Exhibit P5 TRUE COPY OF THE COUNTER IN I.A.NO.608/2019 IN O.S.NO.59/2016 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT-I, KOZHIKODE.

Exhibit P6 TRUE COPY OF THE COMMON ORDER DISMISSING I.A.NO.607 AND 608/2019 IN O.S.NO.59/2016 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT- I, KOZHIKODE.

Exhibit P7 TRUE COPY OF C.M.A.NO.21/2020 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.21/2020 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.NO.21/2020 ON THE FILE OF THE PRINCIPAL DISTRICT COURT, KOZHIKODE.

Exhibit P10 TRUE COPY OF C.M.A.NO.22/2020 ON THE FILE OF THE PRINCIPAL DISTRICT COURT, KOZHIKODE.

Exhibit P11 TRUE COPY OF I.A.NO.1/2020 TO CONDONE THE DELAY IN FILING THE C.M.A.NO.22/2020 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.22/2020 ON THE FILE OF THE PRINCIPAL DISTRICT COURT, KOZHIKODE.

Exhibit P13 TRUE COPY OF THE ORDER DT. 9/7/21 IN I.A.NO.01/2020 IN CMA 21/20 ON THE FILE OF THE PRINCIPAL DISTRICT COURT, KOZHIKODE.

Exhibit P14 THE TRUE COPY OF THE JUDGMENT DT.09/07/21 IN CMA NO.21/20 ON THE FILE OF THE PRINCIPAL DISTRICT COURT, KOZHIKODE.

Exhibit P15 THE TRUE COPY OF THE ORDER DT. 9/7/21 IN I.A.NO.01/2020 IN CMA 22/20 ON THE FILE OF THE PRINCIPAL DISTRICT COURT, KOZHIKODE.

Exhibit P16 THE TRUE COPY OF THE JUDGMENT DT. 09/07/21 IN CMA NO.21/20 ON THE FILE OF THE PRINCIPAL DISTRICT COURT, KOZHIKODE.