Ex Parte Decree; M.C. Sarojini Amma Vs. P. Gopalan [Kerala High Court, 31-08-2016]

Civil Procedure Code, 1908 – Order 9 Rule 13 – Discretion for the court to set aside ex parte decree if sufficient cause is shown – the court must be liberal in considering the application to condone the delay and also to set aside the ex parte decree passed. It must always keep in mind that substantial justice must be done and the justice should not be denied on technical grounds and while considering the words sufficient cause, pragmatic approach must be taken by the court and if it is taken in the restricted sense and substantial justice will suffer then, that must be avoided while considering such circumstances. As far as possible, an opportunity must be given to the parties to meet their case on merit and the justice should not suffer on technical ground of limitation or strict approach of the words used in the statute should not be taken which was not intended by the legislature itself.

Civil Procedure Code, 1908 – Order 9 Rule 13 – Discretion for the court to set aside ex parte decree if sufficient cause is shown – It is not necessary that the reason stated must be proved beyond reasonable doubt and what is required is to consider as to whether the reason stated is convincing and appeals to the mind of the prudent man and nothing more.

Civil Procedure Code, 1908 – Order 9 Rule 13 – Question of condonation of delay and setting aside the ex parte decree – Even if some of the defendants have not appeared and did not file an application to set aside the ex parte decree, if the decree passed is indivisible in nature, then court can set aside the entire decree even if the some of the defendants did not file an application to set aside the ex parte decree.

Civil Procedure Code, 1908 – Order 9 Rule 13 – Question of condonation of delay and setting aside the ex parte decree – Delay of 4 days in filing the application – lawyer of defendants was not in station on that date – It is true that when the case is listed for trial, the parties must co-operate with the court in proceeding with the trial of the case. But there may be cases where they may be prevented by sufficient cause or made to believe that the case is likely to be adjourned on the request of some of the parties. That may prevent them from attending the court on the date on which it was posted in the list. If that possibility is a reasonable and possible possibility, then non appearance of the party cannot be said to be a willful deliberate attempt on their part to protract the proceedings.

Civil Procedure Code, 1908 – Order 9 Rule 13 – Non appearance on the date on which the case was posted for trial – Question of condonation of delay and setting aside the ex parte decree – It is a case where the court ought to have condoned the delay of 4 days in filing the application which cannot be said to be an inordinate delay made for the purpose of protracting the proceedings by the revision petitioners and if the court felt that it has caused inconvenience to the plaintiff by summoning witness and the same witness will have to be summoned again to prove the will, then it ought to have allowed the application to set aside the ex parte decree after condoning the delay by awarding reasonable costs as compensation for the inconvenience caused to the other side on account of the non appearance of the revision petitioners.

# Ex parte Decree

IN THE HIGH COURT OF KERALA AT ERNAKULAM

K.RAMAKRISHNAN, J.

C.R.P No.318 of 2016

Dated this the 31st day of August, 2016

AGAINST THE JUDGMENT IN C.M.A.NO. 50/2015 OF III ADDITIONAL DISTRICT COURT, KOZHIKODE AGAINST THE ORDER IN I.A.NO. 4555/2014 IN O.S.NO. 272/2013 OF ADDITIONAL MUNSIFF COURT-I, KOZHIKODE

REVISION PETITIONER(S)/APPELLANTS/DEFENDANTS 1 TO 3

M.C. SAROJINI AMMA, KOZHIKODE AND 2 OTHERS

BY ADVS. SRI.K.M.FIROZ SRI.S.KANNAN SMT.M.SHAJNA

RESPONDENT(S)/RESPONDENTS/PLAINTIFF AND DEFENDANTS 4 TO 11

P. GOPALAN, KOZHIKODE 8 OTHERS

R1 BY ADVS. SRI.BIJU ABRAHAM SRI.B.G.BHASKAR R6 BY ADVS. SRI.P.S.SREEDHARAN PILLAI SRI.T.K.SANDEEP SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN

ORDER

Petitioners in I.A No.4555 of 2014 and 4556/14 in O.S No.272 of 2013 on the file of the First Additional Munsiff Court, Kozhikode are the revision petitioners herein. The first respondent herein as plaintiff filed O.S No.271 of 2013 on the file of the First Additional Munsiff Court, Kozhikode for declaring his right over the plaint schedule property on the basis of a joint will executed by one Gopalan Nair and his wife, Madhaviamma, who is none other than the sister of first defendant and 4 th defendant and for mandatory injunction directing the defendants to vacate the premises. The suit was listed on 01.11.2014. On that day the defendant did not appear and so they were declared ex parte and the suit was decreed ex parte on 05.11.2014. According to the revision petitioners, they did not appear on 01.11.2014 on the ground that defendants 4 to 11 told her that since their advocate was not present, they will be moving for an adjournment and on the belief that the case will be adjourned on that day, they did not appear. On 06.12.2014 when they went to the office of their advocate, it was revealed that the suit was decreed ex parte on 05.11.2014. Immediately they have taken steps to file I.A No.4556 of 2014 to set aside the ex parte decree along with I.A No.4554 of 2014 to condone the delay of the days in filing the application.

2. The first respondent filed counter contending that the allegations are not sufficient to condone the delay as well as to set aside the ex parte decree. There is not sufficient reason given by the petitioners for not attending the court on 01.11.2014 when the case was listed for trial. Further advance notice will be given when a suit is listed for trial. Further non appearance of defendants 4 to 11 is not a ground for not appearing for defendants 1 to 3 as they were represented by a senior counsel and the counsel appearing for defendants 4 to 11 is a junior counsel attached to the office of the same senior counsel. So he could have conducted the case for and on behalf of the petitioners as well. Further the presence of the petitioners is not required on that day as the plaintiff is claiming right over the property on the basis of a will and the burden is on him to prove the will. Further, though the case was listed on 01.11.2014, it was decreed ex parte only on 05.11.2014 and there is a duty cast on the defendants to enquire about the progress of the case immediately after 01.11.2014. But they alleged to have enquired only on 06.12.2014. Further even on the basis of the merit of the case, the defendants have no right over the property and the joint will was executed in the year 1989 and the husband of Madhaviamma died in 1999 and Madhaviamma died much later. Further the defendants 1 to 3 are residing in another house of their own and their case was that the plaint schedule building was let out to the first defendant on a monthly rent of 300/- by late Madhaviamma from 01.10.1999. But no document has been produced to prove their case. On the other hand, the documents produced by the plaintiff will go to show that they were residing elsewhere and there is no necessity for them to take the plaint schedule property on rent as claimed by them. Their attempt is only to protract the proceedings and there is no bona fide in filing the application and he prayed for dismissal of the petition.

3. It is seen from the lower court order that though the respondent had insisted for evidence of petitioners and it was posted for evidence on three occasions, no oral evidence was adduced. Thereafter the court below after hearing both sides dismissed the application for condonation of delay as there is no valid reasons stated for the delay and consequently dismissed the application to set aside the ex parte decree as well as per order dated 07.04.2015.

4. Thereafter the revision petitioners filed C.M.A No.50 of 2015 before the District Court, Kozhikode along with a delay condonation application of 35 days in filing the appeal and the matter was made over to Third Additional District Court, Kozhikode for disposal. The Third Additional District Judge condoned the delay in filing the appeal, but, after hearing both sides dismissed the appeal by the impugned judgment confirming the order of dismissal of the applications by the court below. Aggrieved by the same, the present revision has been filed by the revision petitioners, defendants 1 to 3 before the court below.

5. Heard Sri S.Kannan who represented Sri.K.M.Firoz, counsel appearing for the revision petitioner and Sri.B.G.Bhaskar and Sri.Biju Abraham, counsel appearing for the first respondent and Sri.P.S.Sreedharan Pillai, counsel appearing for 6 th respondent. Others remained absent.

6. The counsel for the petitioners submitted that courts below were not justified in dismissing the application for setting aside the ex parte decree which was filed along with the petition to condone to delay of only 4 days. It was specifically mentioned that defendants 1 to 11 are having common interest and defendants 1 and 4 are the sister and brother of deceased Madhaviamma and on the death of Madhaviamma, as natural heirs, they will be having right in the property. The plaintiff is relying on a will said to have been executed by Madhaviamma and her husband, genuineness of which has been denied by the petitioners. So there is a debatable question to be considered in the suit and the reason stated was since the counsel appearing for some of the defendants went abroad, they told that they will be moving for adjournment for appointing a counsel for them and believing their words, they did not appear on that particular date on the bona fide belief that the case will be adjourned. Further the first defendant is aged 83 years and she had told the real facts before the court for her non appearance which cannot be said to be not sufficient reason for their non-appearance. The delay was also properly explained and it was not intentional. If at all there is an inconvenience caused to the plaintiff, that could have been compensated by awarding reasonable cost by the courts below instead of dismissing the application and he prayed for allowing the revision petition giving an opportunity for the revision petitioners to contest the case on merit.

7. On the other hand the learned counsel for the first respondent submitted that the courts are not expected to take liberal approach when the non appearance of the parties in court on the day on which the case was included in the special list. In fact, special list system was introduced in Kerala for the purpose of facilitating fair trial and quick disposal of cases in a disciplined manner. If liberal approach is taken, even in cases where if the court is satisfied that the delay as well as non appearance was intentional, then there will be indiscipline in conduct of the cases and none will be serious about promoting the special list system that is being introduced in Kerala and being followed in a better way when compared to the conduct of cases in other States. So, according to the learned counsel, the courts below concurrently found on facts that delay as well as non appearance of the defendants is wilful. Further he had also submitted that the plaintiff is relying on a joint will executed by Gopalan Nair and his wife Madhaviamma, who is the sister of first defendant and 4 th defendant and the will was executed in the year 1989 and both died long after execution of the will. There is no suspicious or vitiating circumstances either mentioned in the written statement or any evidence adduced on the side of the defendants to prove the incapacity of the executants of the will in executing the will. Further the case of the first defendant was that she was residing in the house as a building tenant as entrusted by deceased Madhaviamma from 01.10.1999 on a monthly rent of 300/-. No scrap of paper was produced to prove this fact. Further the documents produced by the plaintiff will go to show that the first defendant and her children were residing in Kakkattil house and not in the plaint schedule house and there was no necessity for them to reside in the house as well. So their attempt is only to prolong and protract the case and nothing more. Further the counsel who appeared for defendants 4 to 11 is none other than the junior counsel of the counsel appearing for the revision petitioners and even in the absence of counsel for defendants 4 to 11, the counsel appearing for the petitioners could have proceeded with the case. Further when he insisted for evidence to prove the reason for nonappearance and it was posted thrice for that purpose, they did not adduce any evidence as well. That also will go to show that they are intentionally avoiding the witness box and adverse inference will have to be taken against them. So according to the learned counsel, when courts below have concurrently found on facts and also on legal principles and declined to exercise the discretion in favour of the revision petitioners, this Court cannot invoke the power under Article 227 of the Constitution of India to interfere with the concurrent findings of the court below unless it is found that it is perverse or illegal and he prayed for dismissal of the revision petition.

8. It is an admitted fact that the plaintiff filed suit for declaration of his title and also for mandatory injunction directing defendants 1 to 3 to vacate the premises. He is relying on a joint will executed by Gopalan Nair and his wife Madhaviamma who are related to him through his mother. The will was executed in the year 1989 and Gopalan Nair died first and thereafter Madhaviamma died. After the death of Madhaviamma, the property was mutated in the name of the plaintiff. According to the plaintiff, the defendants are making unnecessary claim over the plaint schedule property and they are not vacating the premises and that prompted him to file the suit.

9. The defendants 1 to 3 have filed written statement denying the execution of the will by Gopalan Nair and Madhaviamma and they also contended that first defendant is in possession of the building on the basis of the rental agreement entered into between Madhaviamma and herself agreeing to pay a monthly rent of 300/- per month from 01.10.1999 and as such she cannot be evicted from the plaint schedule property except by filing a petition under the Rent Control Act. Since Madhaviamma died issueless, if the will is found to be not genuine, first defendant will be one of the legal heirs along with 4 th defendant and as such plaintiff will not get any right and he is not entitled to get any relief as claimed in the plaint.

10. Defendants 4 to 11 also raised similar contentions by filing joint written statement.

11. It is also an admitted fact the case was listed for trial on 01.11.2014. Since none of the defendants appeared on that day, they were declared ex parte and plaintiff and one witness were examined as Pws 1 and 2 and Exts.A1 to A13 were marked on the side of the plaintiff. Thereafter, the case was posted to 05.11.2014 for judgment. On that day, the suit was decreed ex parte in favour of the plaintiff. It is also an admitted fact that the defendants 1 to 3 filed I.A Nos.4555 of 2015 and 4556 of 2014 to set aside the ex parte decree along with petition to condone delay of four days in filing the application. It is alleged in the petition that the defendants 4 to 9 have informed the first defendant that they will be moving for adjournment as their counsel went abroad and the case will not be taken on that day. Believing their words, they did not attend the court. But only on 06.12.2014 when they went to the office of the counsel to enquire about the case, they came to know about the ex parte decree passed against them. Immediately they made arrangements to file the application to set aside the ex parte decree with delay condonation petition.

12. First respondent, who is the plaintiff, filed detailed counter denying the allegations.

13. Order IX Rule 13 is the provision which deals with filing application to set aside ex parte decree, which reads as follows:

# 13. Setting aside decree ex parte against defendant

In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly 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:

Provided that 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.

Provided further that 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.”

14. It is also settled law that Section 5 of the Limitation Act deals with power of the court to condone the delay and a discretion has been vested in the courts in construing the reason for the delay liberally so as to advance substantial justice to the parties and also to give opportunities to the parties to meet the case on merit.

15. In the decision reported in

# Madhavan @ Narayanan v Savithry and Others, 1996 (1) KLJ 445

this Court has held that Section 5 of the Limitation Act 1963 provides that any appeal or any application other than the application under any provisions of Order XXI of the Code of Civil Procedure, 1908 may be admitted after the prescribed period if the appellant or applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. The power conferred under this provision is no doubt a discretionary power, the exercise of which is depends upon the satisfaction of the court. The discretion must be exercised with vigilance and the circumstances according to justice, commonsense and sound judgment. In other words, the discretion is to know through law what is just and reasonable.

16. In the decision reported in

# Mahesh Kumar Joshi v Madan Singh Negi, AIR 2015 SC 974

it has been held in paragraph 11 that after due consideration we are of the view that a debatable issue does arise for consideration and it will be fair and just to give the appellant an opportunity to contest the suit on certain conditions. It is also mentioned in the same decision that setting aside the ex parte decree under Order XXXVII Rule 4 of the Code of Civil Procedure cannot be allowed in routine and special circumstances are required to be established. However, the extension of the special circumstances has to be construed having regard to the individual fact situation. The court has to balance equities and while safeguarding the interest of the plaintiff appropriate consideration can be laid down if the defendant makes out a debatable case which may prima facie show injustice if the ex parte decree was not set aside.

17. In the decision reported in

# Balwant Singh v Jagdish Singh and Others, (2010) 8 SCC 685

it has been held in paragraph 14 as follows.

“14. In the case of

# Union of India v Tata Yodogawa Ltd., 1988 (38) Excise Law Times 739 (SC)

this Court while granting some latitude to the Government in relation to condonation of delay, still held that there must be some way or attempt to explain the cause for such delay and as there was no whisper to explain what legal problems occurred in filing the Special Leave Petition, the application for condonation of delay was dismissed. Similarly, in the case of

# Collector of Central Excise, Madras v. A.MD.Bilal and Co, 1999 (108) Excise Law Times 331 (SC)

the Supreme Court declined to condone the delay of 502 days in filing the appeal because there was no satisfactory or reasonable explanation rendered for condonation of delay. The provisions of O.22 R.9, Code of Civil Procedure has been the subject matter of judicial scrutiny for considerable time now. Sometimes the Courts have taken a view that delay should be condoned with a liberal attitude, while on certain occasions the Courts have taken a stricter view and wherever the explanation was not satisfactory, have dismissed the application for condonation of delay. Thus, it is evident that it is difficult to state any straight-jacket formula which can uniformly be applied to all cases without reference to the peculiar facts and circumstances of a given case. It must be kept in mind that whenever a law is enacted by the legislature, it is intended to be enforced in its proper perspective. It is an equally settled principle of law that the provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected object is achieved. In other words, no provisions can be treated to have been enacted purposelessly. Furthermore, it is also a well settled canon of interpretative jurisprudence that the Court should not give such an interpretation to provisions which would render the provision ineffective or odious. Once the legislature has enacted the provisions of O.22, with particular reference to R.9, and the provisions of the Limitation Act are applied to the entertainment of such an application, all these provisions have to be given their true and correct meaning and must be applied wherever called for. If we accept the contention of the Learned Counsel appearing for the applicant that the Court should take a very liberal approach and interpret these provisions (O.22 R.9 of the Code of Civil Procedure and S.5 of the Limitation Act) in such a manner and so liberally, irrespective of the period of delay, it would amount to practically rendering all these provisions redundant and inoperative. Such approach or interpretation would hardly be permissible in law. Liberal construction of the expression ‘sufficient cause’ is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. There can be instances where the Court should condone the delay; equally there would be cases where the Court must exercise its discretion against the applicant for want of any of these ingredients or where it does not reflect ‘sufficient cause’ as understood in law. [Advanced Law Lexicon, P.Ramanatha Aiyar, 2 nd Edition, 1997]. The expression ‘sufficient cause’ implies the presence of legal and adequate reasons. The word ‘sufficient’ means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the Court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the Courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated. We find it unnecessary to discuss the instances which would fall under either of these classes of cases. The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P.Ramanatha Aiyar, 3 rd Edition, 2005]”

18. In the same decision the Supreme Court has relied on the decision reported in

# Ramlal and Others v Rewa Coalfields Ltd., AIR 1962 SC 361

where it has been held that in construing Section 5, it is relevant to bear in mind two important considerations. The first consideration is that the extension of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties. In other words when the period of limitation prescribed has expired, the decree holder has obtained the benefit under law of limitation to treat the decree as beyond challenge and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing the delay is shown, discretion is given to the court to condone the delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised in advance substantial justice as has been observed by the Madras High Court in

# Krishna v Chathappan, ILR 13 Madras 269

It is however necessary to emphasis that even after sufficient cause has been shown, a party is not entitled to condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for exercise of discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved, nothing further has to be done. The application for condonation of delay has to be dismissed on that ground alone. If sufficient cause is shown then court has to enquire whether in its discretion it should condone the delay. This aspect to the matter naturally introduces the consideration of all relevant facts and at it is at this stage the diligence of the parties or its bona fide may call for consideration.

19. In the decision reported in

# G.P. Srivastava v. R.K. Raizada, (2000) 3 SCC 54

it has been held that “was prevented by any sufficient cause from appearing occurring in Order 9 Rule 13 must be liberally construed where the defence is reasonable, defendant approaches court for setting aside ex parte decree within a statutory period and non-appearance is not mala fide or intentional. The courts have wide discretion and thus expression must be construed as an elastic expression and no hard and fast guidelines can be prescribed”. It is further held in the same decision that “sufficient cause for non appearance held reference to the date on which the absence was made a ground for preceding ex parte. It cannot be stretched to cover circumstances occurring prior to that date. Thus where sufficient cause is made out by defendant for non appearance on such date, he cannot be penalised for any previous negligence which had been overlooked and so condoned earlier”. In the same decision it has been further held that “when an application for setting aside the ex parte decree was made on the ground of sickness which cannot be rejected merely because medical certificate has been obtained from a private practitioner and not from a Government doctor”. Further it has been held that “even where the defendant is found to be negligent, the other side may be compensated by costs and the decree set aside on appropriate terms and conditions”. It is further held that “in considering the application to set aside ex parte decree, narrow and technical approach of court leads to unnecessary prolonging of litigation. Justice can only be achieved if defendant is allowed the opportunity to prove his case within a reasonable time”.

20. In the decision reported in

# M.K. Prasad v. P. Arumugam, (2001) 6 SCC 176

it has been held that “while considering the application to condone the delay in filing the application for setting aside ex parte decree, failure to adopt extra vigilance held should not be made a ground for ousting a party from a litigation, in particular where the inconvenience caused to the other party can be compensated by awarding appropriate and exemplary costs”. It is further held in the same decision that “while considering the delay in applying for setting aside ex parte decree the extent of the property involved and the stake of the parties also to be keep in mind when deciding an application under Order 9 Rule 13 of the CPC”. It is further held that “the discretion under section 5 of the Limitation Act has to be exercised to advance substantial justice and not to prevent justice to the parties and access to justice to have their case decided on merit”.

21. In the decision reported in

# State of Nagaland v. Lipok Ao, (2005) 3 SCC 752

it has been held that “proof by sufficient cause is a condition precedent for exercise of the extraordinary discretion vested in the court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. What constitutes sufficient cause cannot be laid down by hard and fast rules”. Further in the same decision it has been held that “while considering the question of sufficient cause, approach of court must be liberal and the expression sufficient cause should be considered with pragmatism in justice oriented approach, rather than a technical detection of sufficient cause for explaining every days’ delay. Having regard to considerable delay of procedural red tape permissible in the decision making process of the government certain amount of latitude is permissible”. The same view has been reiterated in the decisions reported in

# Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, AIR 2012 SC 1629

22. In the decision reported in

# Manoharan v. Sivarajan, 2013 (4) KLT 828 (SC)

it has been held that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of non deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay.

23. In the decision reported in

# Parimal v. Veena @ Bharati, 2011 KHC 4117

it has been held that however in case the matter does not fall within the four corners of O.9 Rule 13 CPC, the Court has no jurisdiction to set aside the ex parte decree. The manner in which the language of the second proviso to O.9 Rule 13 CPC has been couched by the legislature makes it obligatory on the Appellate Court not to interfere with an ex parte decree unless it makes the statutory requirement. The High Court failed to discharge the obligation placed on the First Appellate Court as none of the relevant aspects have been dealt with in proper prospective. It was not permissible for the High Court to take into consideration the conduct of the appellant subsequent to passing of the ex parte decree. More so, the High Court did not consider the grounds on which the Trial Court had dismissed the application under O.9 R.13 CPC filed by the respondent/wife and the appeal has been decided in a causal manner. It is further held in the same decision that:

“The legislature in its wisdom, made the second proviso, mandatory in nature. Thus, it is not permissible for the Court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein. “Sufficient Cause” is an expression which has been used in large number of Statures. The meaning of the word ‘sufficient’ is ‘adequate’ or ‘enough’, in as much as may be necessary to answer the purpose intended. Therefore, the word ‘sufficient’ embraces not more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context Sufficient cause means that the party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been ‘not acting diligently’ or remaining inactive. However the facts and circumstances of each case offered sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. While deciding whether there is a sufficient cause or not, the Court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it”.

24. The same principle has followed and reiterated in the decision of this court as well in the decision reported in

# John v. Mammukutty, 1985 KLT 55

# Karmali v. Joseph, 1998 (2) KLT 714

and

# Plantation Corporation of Kerala Ltd. v. Hussain, 1998 (1) KLT 1008

25. It is clear from the above dictums that the court must be liberal in considering the application to condone the delay and also to set aside the ex parte decree passed. It must always keep in mind that substantial justice must be done and the justice should not be denied on technical grounds and while considering the words sufficient cause, pragmatic approach must be taken by the court and if it is taken in the restricted sense and substantial justice will suffer then, that must be avoided while considering such circumstances. It is also clear from the above decisions that as far as possible, an opportunity must be given to the parties to meet their case on merit and the justice should not suffer on technical ground of limitation or strict approach of the words used in the statute should not be taken which was not intended by the legislature itself. Proviso to Order 9 Rule 13 gives a discretion for the court to set aside ex parte decree if sufficient cause is shown. It is also clear from the above decisions that it is not necessary that the reason stated must be proved beyond reasonable doubt and what is required is to consider as to whether the reason stated is convincing and appeals to the mind of the prudent man and nothing more. With this principles in mind, the question as to whether the appellants have succeeded in proving their case and made out a ground for setting aside the ex parte decree after condoning the delay and whether the courts below have properly and with right perspective applied the principles laid down in the above decisions while considering the question arising in this case has to be considered in this case.

26. It is an admitted fact that the plaintiff is claiming a right in the plaint schedule property on the basis of a joint will executed by one Gopalan Nair and his wife Madhaviamma who is related to the plaintiff through his mother. Defendants 1 and 4 are the sister and brother of deceased Madhaviamma. It is true that the will was executed in the year 1989 and Gopalan Nair and Madhaviamma died long after the execution of the will. But in the written statement filed by the appellants, they have denied the execution of the will by Gopalan Nair and Madhaviamma and if the will goes, then they will be getting a right in the property and the plaintiff will be non suited. It is also true that the appellants have taken up another contention also apart from denying the existence of will that the first defendant had taken the building on rent from Madhaviamma from 1.10.1999 on a monthly rent of Rs.300/- and she was residing there as a building tenant even after the death of Madhaviamma. So even if she is not entitled to right in the property, she will be getting the protection of Kerala Buildings (Lease and Rent Control) Act and she cannot be driven out by way of mandatory injunction. Whether those contentions are tenable or not, whether that could be proved by the defendants or not need not be gone into by this court at the time of considering the question of condonation of delay and setting aside the ex parte decree though in some of the decisions it has been held that the stake involved in the case and nature of defence gives rise to an option for the court to come to a conclusion that there is debatable question to be decided then that also can be taken into consideration to set aside ex parte decree passed against the defendants. It is also settled law that even if some of the defendants have not appeared and did not file an application to set aside the ex parte decree, if the decree passed is indivisible in nature, then court can set aside the entire decree even if the some of the defendants did not file an application to set aside the ex parte decree.

27. It is true that in this case when the case was posted for trial in the special list on 1.11.14, the revision petitioners did not appear and plaintiff and one witness were examined as Pws 1 and 2 and number of documents were marked on the side of the plaintiff and it was posted to 5.11.2014 for judgment and on that day the ex parte decree was passed. It is true that the defendants have approached their lawyer only on 6.12.2014 and the application was filed immediately thereafter and there was only a delay of 4 days in filing the application. So the number of days delay in this case cannot be said to be inordinate or done with malafide intention to protract the proceedings as such. The reason stated for their non appearance was that defendants 4 to 9 have told them that since their lawyer was not available in station, they will be making an application for adjournment on that ground and the case is not likely to be taken up on that day. It was in a way not disputed that the lawyer of defendants 4 to 9 was not in station on that date. It is true that the lawyer appearing for defendants 4 to 9 was a lawyer attached to the office of the lawyer appearing for the revision petitioners and they are supporting the case of the revision petitioners as well. Though an attempt was made for an adjournment, but that failed and the court below declared the defendants ex parte on that day and proceeded with the trial of the case by taking evidence of Pws 1 and 2 and marking the documents and closed the evidence and posted the case for judgment to 5.11.2014. It is true that burden is on the plaintiff to prove his case of execution of the joint will on the basis of which he is claiming right in the property and the counsel for the revision petitioners could have cross examined those witnesses. Those are all within the discretion of the lawyer appearing for the defendants.

28. This possibility of co-defendant who is none other than the relative of the revision petitioners informing that they will be moving for adjournment also cannot be ruled out. This cannot be said to be a ground not sufficient for non appearance of the revision petitioners before court on the date on which the case was posted for trial in the list. It also cannot be said to be a deliberate or intentional avoidance of court by the revision petitioners on the date on which the case was posted for trial. It is true that when the case is listed for trial, the parties must co-operate with the court in proceeding with the trial of the case. But there may be cases where they may be prevented by sufficient cause or made to believe that the case is likely to be adjourned on the request of some of the parties. That may prevent them from attending the court on the date on which it was posted in the list. If that possibility is a reasonable and possible possibility, then non appearance of the party cannot be said to be a willful deliberate attempt on their part to protract the proceedings. Further this was for the first time that it was listed for trial. There was no case for the first respondent that the petitioners were deliberately attempting to prolong the matter at any point of time during the course of the proceedings earlier as well. So under such circumstances, the observations made by the court below that it was only to prolong the matter that the revision petitioners did not appear and the reasons stated by the petitioners cannot be said to be a sufficient cause contemplated under Order 9 Rule 13 of the Code of Civil Procedure for their non appearance on the date on which the case was posted for trial is unsustainable in law.

29. It is true that the petitioners ought to have enquired about the progress of the case after 1.11.2014 when the case was posted in the special list for trial. But there is a duty cast on the counsel also to inform the progress of the case to the petitioners especially when some of the defendants are being appeared through the counsel attached to the same office. There is nothing on record to show that such a thing was done in this case. So under such circumstances, this court feels that it is a case where the court ought to have condoned the delay of 4 days in filing the application which cannot be said to be an inordinate delay made for the purpose of protracting the proceedings by the revision petitioners and if the court felt that it has caused inconvenience to the plaintiff by summoning witness and the same witness will have to be summoned again to prove the will, then it ought to have allowed the application to set aside the ex parte decree after condoning the delay by awarding reasonable costs as compensation for the inconvenience caused to the other side on account of the non appearance of the revision petitioners. So under such circumstances, the observation made by the court below that reasons stated by the revision petitioners for their non appearance is not a sufficient cause to condone the delay or to set aside the ex parte decree and dismissing the application on that ground by the court below and confirmed by the appellate court is unsustainable in law in view of the discussions made above and the court ought to have exercised the discretion in favour of the revision petitioners especially when it relates to a property dispute and on the basis of the will, the natural heirs are being disinherited from inheriting the property of the deceased. So, the order dismissing the application to set aside the ex parte decree consequential to the dismissal of the delay condonation application by the court below and confirming the same by the appellate court are to be set aside and the ex parte decree has to be set aside for the purpose of giving an opportunity to the revision petitioners to meet the case on merit, but at the same that can be granted only on payment of costs.

So the revision petition is allowed on condition that the revision petitioners shall pay a cost of Rs.7,500/-, out of which Rs.5,000/- be paid to the counsel for the first respondent before this court and the balance amount of Rs.2,500/- be paid to the Kerala State Mediation and Conciliation Centre within two weeks from today. If the cost is paid and proof of payment of cost is produced, then the revision petition will be allowed and the order dismissing the application to set aside the ex parte decree confirmed by the appellate court will be set aside and it will be restored to file, otherwise the revision petition will stand dismissed. If the cost is paid within the time specified above and produced the proof of payment of cost as directed before the court below within the time specified above, then the court below is directed to restore the suit to file and dispose of the suit after giving an opportunity to the parties to adduce evidence afresh in accordance with law. If the cost is not paid and proof of payment of cost is not produced before the court below as directed, then the order dismissing the application to set aside the ex parte decree will stand and the revision will stand dismissed.

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