M.K Vineesh vs Rajalakshmi.T.R
2025 Latest Caselaw 2659 Ker

Citation : 2025 Latest Caselaw 2659 Ker
Judgement Date : 21 January, 2025

Kerala High Court

M.K Vineesh vs Rajalakshmi.T.R on 21 January, 2025

Author: Sathish Ninan

Bench: Sathish Ninan

                                                2025:KER:4169
FAO NO.149 OF 2024
                           :-1-:

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
           THE HONOURABLE MR. JUSTICE SATHISH NINAN
                               &
       THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
   TUESDAY, THE 21ST DAY OF JANUARY 2025 / 1ST MAGHA, 1946
                      FAO NO. 149 OF 2024

      [AGAINST THE ORDER DATED 13.11.2024 IN RPIA NO.54/2023
IN OS NO.174 OF 2019 OF ASSISTANT SESSIONS COURT/II
ADDITIONAL SUB COURT,KOZHIKODE ARISING OUT OF THE ORDER
DATED 13.11.2024 IN IA NO.11/2023 IN OS NO.174 OF 2019 OF
ASSISTANT SESSIONS COURT/II ADDITIONAL SUB COURT,KOZHIKODE]
APPELLANT/PETITIONER/DEFENDANT:

         M.K VINEESH
         AGED 42 YEARS
         S/O.KOOVVIL MEETHAL VASU NAIR, MANAKKAT HOUSE,
         MEDICAL COLLEGE.P.O., NELLIKODE AMSOM, KOVOOR
         DESOM, KOZHIKODE TALUK., PIN - 673008


         BY ADVS.
         ZAKEER HUSSAIN
         K.A.SANJEETHA


RESPONDENT(S)/RESPONDENT/PLANTIFF:

         RAJALAKSHMI.T.R
         AGED 75 YEARS
         W/O.LATE.K.V.VIJAYAN, SREELAKSHMI HOUSE,
         VETTAYADUKUNNUMMAL HOUSE, VENGERI.P.O.,
         KARAPARAMBA, KOZHIKODE TALUK., PIN - 673010


         BY ADVS.
         T.P.SAJID
         SHIFA LATHEEF(K/1347/2016)
         MUHAMMED HAROON A.N.(K/001039/2022)
         HASHARURAHIMAN U.(K/1137/2021)
         MOHEMED FAVAS(K/001375/2021)


     THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR
ADMISSION ON 17.01.2025, THE COURT ON 21.01.2025 DELIVERED
THE FOLLOWING:
                                                             2025:KER:4169
FAO NO.149 OF 2024
                                     :-2-:

                               JUDGMENT

SHOBA ANNAMMA EAPEN, J.

This appeal is filed by the defendant in O.S.No.174 of 2019 on the file

of the Additional Sub Court-II, Kozhikode. He filed RPIA No.54 of 2023

along with IA No.11 of 2023 seeking to set aside the ex-parte decree in the

suit and to condone the delay of 51 days in filing the RPIA No.54 of 2023.

The Sub Court dismissed the applications by a common order dated

13.11.2024. Challenging the above common order, the appellant has

preferred this appeal under Section 104 read with Order XLIII, Rule 1(d) of

the Code of Civil Procedure, 1908.

2. The suit is for realisation of money. The appellant is the

defendant and the respondent is the plaintiff in the suit. The case of the

appellant is that on 07.07.2023, when the case was listed for trial, the

appellant could not appear due to illness. Hence, the suit was decreed ex

parte. Thereafter, the appellant filed a petition to set aside the ex parte

decree passed against him. But, due to some defect in the cause title, the

petition was returned with a direction to re-present the same within 7 days

after curing the defect. The petition was taken back by the advocate clerk,

but it was misplaced due to the shifting of the advocate office. Thus, there

occurred a delay of 51 days in filing the RPIA No.54 of 2023. Hence,

I.A.No.11 of 2023 was filed to condone the said delay. There was no laches

or negligence on the part of the appellant in not appearing on 07.07.2023 2025:KER:4169 FAO NO.149 OF 2024 :-3-:

and also in causing the delay in filing the petition to set aside the ex parte

decree.

3. The respondent/plaintiff refuted the reasons stated and it was

contended that, earlier, on 10.02.2022 also, an ex parte decree was passed

against the appellant and it was set aside as per the order in RPIA No.29 of

2022. The intention of the appellant is only to protract the matter by not

allowing the respondent/plaintiff to enjoy the fruits of the decree. Further, it

was contended that the reason cited for non appearance on 07.07.2023 is

unsupported by documents and the explanation for the delay in filing the

RPIA is not satisfactory.

4. We have heard the learned counsel appearing on both sides.

5. The suit was decreed ex parte on 13.07.2023. The reason

stated for non-appearance is that the appellant was suffering from H1N1,

though not supported by documents. On an earlier occasion also, the suit

was decreed ex parte, which was set aside on 15.02.2023. From the

impugned order, it is seen that when the matter was posted for trial on

07.07.2023, the appellant was not present and the case was posted to

10.07.23 on which date the counsel reported no instructions. Thus, the suit

was decreed ex parte.

6. Of course, the reasons stated for being ex parte and for the

delay in filing the RPIA are not satisfactorily explained. In Esha

Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649], 2025:KER:4169 FAO NO.149 OF 2024 :-4-:

the apex court, while summarizing the principles applicable while dealing

with an application for condonation of delay, held that the concept of liberal

approach has to encapsulate the conception of reasonableness and it

cannot be allowed a totally unfettered free play. The apex court held further

that there is a distinction between inordinate delay and a delay of short

duration or few days, for to the former doctrine of prejudice is attracted,

whereas to the latter it may not be attracted. That apart, the first one

warrants a strict approach, whereas the second calls for a liberal

delineation.

7. The delay in this case is 31 days. On an appraisal of the facts

of this case, which are mentioned above, we are of the view that one more

opportunity can be granted to the appellant as a last chance, to contest the

case on merits and get a decision on merits. Of course, the interests of the

plaintiff are also to be protected. The defendant could be required to furnish

security for the decree amount. While ordering so, we have taken due note

of the fact that this is the second occasion when the suit was decreed ex

parte the amount involved, and also the fact that the suit is of the year 2019.

So also, the respondent had filed an execution petition and prosecuted the

same, which would become futile on account of this judgment. The

inconvenience caused to the plaintiff can be compensated by way of costs.

Hence, we find that the common order of the Sub Court in RPIA 54 of 2023 2025:KER:4169 FAO NO.149 OF 2024 :-5-:

and IA No.11 of 2023 are liable to be set aside and the decree dated

13.07.2023 can be set aside on terms.

Accordingly, the appeal is disposed of, as hereunder:

The impugned order will stand set aside and RPIA No.54 of 2023 and

I.A.No.11 of 2023 in O.S.No.174 of 2019 will stand allowed on the following

conditions:

(a) The appellant shall pay an amount of ₹20,000/- (Rupees twenty

thousand only) as costs to the counsel appearing for the respondent

before this Court within a period of one month from today.

(b) The appellant shall furnish adequate security for the decree amount

inclusive of interest and costs, to the satisfaction of the trial court,

within one month from today.

(c) On failure of the appellant to comply with the above directions, he will

not be entitled to get the benefit of this judgment and the appeal will

stand dismissed.