Kerala High Court

Muhammed Ali Ottappokkil vs Ashraf E.K on 14 June, 2022

                 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. 2047 OF 2021
AGAINST THE ORDER DATED 09.07.2021 IN IA 1/2020 IN CMA 20/2020 OF THE
DISTRICT COURT,KOZHIKODE AND THE CONSEQUENTIAL DISMISSAL OF THE CMA.
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



RESPONDENT/S:

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

     2        FASAL @ MUTHU
              S/O.MUKAMED ALI, KANJIRATHUMPOYIL 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. 2047 OF 2021                2



                          JUDGMENT

The Original Petition is filed to set aside the common

order in I.A Nos 588/2019 in O.S No.369/2010 (Ext.P4) of

the Court of the Additional Munsiff -I, Kozhikode and the

orders in C.M.A No.20/2020 (Exts.P8 and P9) passed by

the Court of the Principal learned District Judge,

Kozhikode.

2. The concise case of the petitioner, shorn of

exhaustive pleadings, in the original petition is that, he is

the second defendant in the above suit, which is filed by the

first respondent, seeking a decree, inter alia, to declare

that the conveyance deeds are null and void and for

injunction. The suit was listed for trial on 17.01.2019. As

the petitioner was held up in Saudi Arabia, he could not

attend the trial. Thus, Exhibit P2 ex-parte decree was

passed. The petitioner returned to India on 05.02.2019 and

filed Exhibit P3 application to set aside the ex-parte decree.

The Trial Court without considering Exhibit P3 application

in its proper perspective, dismissed the application by

Exhibit P4 order. Challenging Exhibit P4, the petitioner

filed Exhibit P5 C.M.A No.20/2020 before the Court of the

Principal District Judge, Kozhikode along with Exhibit P6

application to condone the delay of 205 days in fling Exhibit

P5. The learned District Judge, without appreciating the

materials on record, by the impugned Exhibits P8 and P9

orders, dismissed the application and appeal. Exhibit P4,

P8 and P9 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 or consideration in this

original petition is whether there is any illegality or

irregularity in Exts.P4, P8 and P9 orders passed by the

court below?

5. Ext.P1 plaint was instituted by the first

respondent, inter alia, seeking a decree to declare

conveyance deeds as null and void. It is admitted that the

petitioner was in Saudi Arabia and the suit was set ex-parte

by Exhibit P2. Even though he filed Exhibit P3 application,

the same was also dismissed. Challenging the said order,

the petitioner filed Exhibit P5 appeal and P6 application to

condone the delay of 205 days in filing Exhibit P5.

However, the Appellate Court by Exhibits P8 and P9 orders,

dismissed the above, on the finding that the petitioner has

not made out sufficient cause to condone the delay of 205

days in filing the appeal. Resultantly, the Appellate Court

confirmed Exhibit P2 decree 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 P6 application, that is to condone the

delay of 205 days in filing Exhibit P5 appeal, the petitioner

has categorically deposed that he was employed in Saudi

Arabia and he was prevented from travelling to India to file

the appeal.

8. A reading of Exhibits P8 and P9 orders 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 P6 application, I find that the petitioner has stated

sufficient cause to condone the delay of 205 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 205

days. 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 above 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, 2010, 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 P4, P8 and

P9 subject to the following conditions:-

In the result, the original petition is allowed in the

following manner:

(i) Exhibits P4, P8 and P9 of the Court of the

Additional Munsiff -I, Kozhikode and the orders of the

Pricipal 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, Exhibits P4, P8 and P9 will stand set aside

and O.S. No.369/2010 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

first respondent in accordance with law.

(iv) On a consideration of the fact that the suit is of

the year 2010, the Trial Court shall make every

endeavour to consider and dispose of O.S. No.369/2010,

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), Exhibits P4, P8 and P9

shall stand confirmed.

Sd/-

C.S.DIAS JUDGE rmm/14/06/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE PLAINT IN O.S.NO.369/2010 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF COURT, KOZHIKODE

Exhibit P2 TRUE COPY OF THE I.A.NO.588/2019 IN O.S.NO.369/2010 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF COURT, KOZHIKODE

Exhibit P3 TRUE COPY OF THE COUNTER IN I.A.NO.588/2019 IN O.S.NO.369/2010 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF COURT, KOZHIKODE

Exhibit P4 TRUE COPY OF THE ORDER DISMISSING I.A.NO.588/2019 IN O.S.NO.369/2010 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF COURT, KOZHIKODE

Exhibit P5 TRUE COPY OF THE C.M.A NO.20/2020 ON THE FILE OF THE DISTRICT COURT, KOZHIKODE

Exhibit P6 TRUE COPY OF I.A.1/2020 TO CONDONE THE DELAY IN FILING THE C.M.A NO.20/2020 ON THE FILE OF THE DISTRICT COURT, KOZHIKODE

Exhibit P7 TRUE COPY OF THE COUNTER IN I.A.1/2020 IN C.M.A NO.20/2020 ON THE FILE OF THE DISTRICT COURT, KOZHIKODE

Exhibit P8 TRUE COPY OF THE ORDER DATED 8.7.2021 IN I.A.1/2020 TO CONDONE THE DELAY IN FILING THE C.M.A NO.20/2020 ON THE FILE OF THE DISTRICT COURT, KOZHIKODE

Exhibit P9 TRUE COPY OF THE JUDGMENT DATED 8.7.21 IN C.M.A NO.20/2020 ON THE FILE OF THE DISTRICT COURT, KOZHIKODE

RESPONDENTS' EXHIBITS

EXHIBIT R1(a) :-COPY OF THE COMMON ORDER PASSED IN IA NO.648/2019 AND IA NO.649/2019 IN OS NO.57/2016 ON TH FILE OF THE PRINCIPAL MUNSIFF COURT-I, KOZHIKODE.

EXHIBIT R1(b):- COPY OF THE AFFIDAVIT FILED BY THE PETITIONER HEREIN IN IA NO.649/2019 IN OS NO.57/2016 ON THE FILE OF THE MUNSIFF COURT I - P, KOZHIKODE.