Ex parte Decree; Sunil Kumar Vs. Sini Mol [Kerala High Court, 21-10-2016]

Civil Procedure Code, 1908 – Order IX Rule 13 – Setting aside the ex parte decree – Power of Attorney Holder – Held, the defendant himself has to apply for getting the ex parte decree set aside. It is not contemplated by the provision that apart from the defendants, any other person is empowered to file the application.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

K.Surendra Mohan & Mary Joseph, JJ.

Mat.Appeal Nos. 124 & 125 of 2011

Dated this the 21st day of October, 2016

[AGAINST THE ORDER IN IA NOS.1544/2010 & 1545/2010 IN OP 71/2005 of FAMILY COURT,ERNAKULAM DATED 29-10-2010]

APPELLANT/PETITIONER/RESPONDENT

SUNIL KUMAR, THRISSUR

BY ADV. SMT.K.V.BHADRA KUMARI

RESPONDENT(S)/RESPONDENT/PETITIONER

SINI MOL, ERNAKULAM

BY ADV. SRI.AYPE JOSEPH

J U D G M E N T

Mary Joseph,J: The common respondent in O.P.Nos.71/2005 and 673/2005 respectively has approached this court seeking to set aside the common orders passed by the Family Court, Ernakulam (for short ‘the court below’) in I.A.Nos.1544/2010 and 1545/2010 and I.A.Nos.1547/2010 and 1548/2010 in respective original petitions on 29.10.2010.

2. One among the orders under challenge was passed by the court below in the interlocutory applications numbered as I.A.No.1544/2010 seeking to set aside the ex parte decree passed on 8.7.2008 in O.P.No.71/2005 and I.A.No.1545/2010 seeking to condone the delay of 598 days occurred in filing the said application. The second order under challenge was passed by the court below in the interlocutory application numbered as I.A.No.1547/2010 seeking to set aside the ex parte decree passed on 8.7.2008 in O.P.No.673/2005 and I.A.No.1548/2010 seeking to condone the delay of 598 days occurred in filing the said application.

3. O.P.No.71 of 2005 was filed by the respondent herein as petitioner before the court below seeking a decree of maintenance under

# Section 18 (2) of the Hindu Adoption and Maintenance Act, 1956

O.P.No.673 of 2005 was filed by the respondent herein as petitioner before the court below seeking a decree for realisation of money from the respondent therein under

# Section 7 of the Family Courts Act, 1984

Due to non-contest of the original petitions by the common respondent, he was set ex parte and ex parte decrees were passed in the petitions on 8.7.2008. Thereupon, interlocutory applications have been moved as I.A.Nos.1544/2010 and 1545/2010 in O.P.No.71 of 2005 and I.A.Nos.1547/2010 and 1548/2010 in O.P.No.673 of 2005 with the respective prayers for condoning the delay and setting aside the ex parte decree.

4. The affidavits in support of these applications have been sworn to by the brother-in-law of the respondent in his capacity as his Power of Attorney Holder.

5. The Power of Attorney Holder had sworn to the effect that the respondent had been to Qatar during March 2008 in connection with his employment as an unskilled labourer for a period of one year on the basis of a contract of employment. The term of contract was extended till March 2009 and further till March 2010. The ex parte decree was passed by the court below on 8.7.2008. The counsel for the respondent in the original petitions obtained avocation as Judicial Member of the Central Administrative Tribunal and had left Kerala and therefore, he could not pursue the original petition at the appropriate time. There is no willful laches on the part of the respondent in the respective original petitions to contest the case. The delay of 598 days was occurred not due to any willful act or negligence on his part.

6. The respondent herein (the petitioner in the respective original petitions) resisted the applications contending that the respondent before the court below was set ex parte on two earlier occasions also and got those orders set aside by filing applications. E.P.Nos.23/2009 and 22/2009 have been filed by them in the respective original petitions to get the decreed amount realised and admittedly, service against the respondent therein (the appellant herein) had been completed by affixture of notice at his residence, which is the last known address of his and therefore, the applications filed now are liable to be dismissed for want of bona fides. The appellant had also been served with summons originally in the original petitions. He had also entered appearance and filed objections refuting the averments of the petitioner (respondent herein). The original petitions thereafter were posted by the court below on 08.07.2008. The respondent did not appear before the court on 08.07.2008. Therefore, he was set ex parte by the court below in both the original petitions and ex parte decrees were passed on the same day. There is clear laches and negligence on the part of the appellant. The applications are liable to be dismissed for want of bona fides.

7. The court below considered the rival pleadings of the parties and finally dismissed those applications on the reasoning as extracted hereinbelow:-

7. On going through the contentions of the parties, it is evident that there is willful latches and negligence on the part of the applicant in filing the application to set aside the ex parte decree. The reason for the delay was not properly explained by the applicant or his power of attorney agent. In such circumstances, it is held that the applicant is not entitled to the relief claimed in these applications. The points for consideration are answered accordingly.”

8. The common orders passed by the court below in the respective original petitions put the respondent therein in grievance and therefore, the captioned Mat.Appeals have been preferred by him. Smt.K.V.Bhadrakumari represented the appellant in the respective Mat.Appeals. When the appeals came up for admission, it is urged by the learned counsel that the court below has erred in passing the impugned common orders. According to her, the court below had failed to appreciate the contentions raised by the appellant in the applications filed by them to set aside the ex parte decree and to condone the delay. It is submitted by her that a lenient approach is warranted in matters of this nature as laid down both by various High Courts and the Apex Court in a catena of decisions.

9. Learned counsel for the appellant has cited

# Parimal v. Veena alias Bharti, (2011) 3 SCC 545

to support her contention that the appellant was prevented from attending the court due to a sufficient cause. In the decision cited, the Apex Court had explained the meaning of the word ‘sufficient cause’ in the following terms:-

“13. …………………. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, word “sufficient” embraces no 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 viewpoint 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 a 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”………………..”

“16. In order to determine the application under Order 9 Rule 13 CPC, the test that has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straitjacket formula of universal application.”

Learned counsel contended that the test for determination of ‘sufficient cause ‘ in an application under Order IX Rule 13 C.P.C. is to see whether the defendant in a case had honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. The learned counsel contended that in the case on hand, the appellant was prevented from attending the court due to his employment abroad. The counsel with whom he had entrusted the case was also prevented from attending the court on account of his joining another avocation. According to the counsel, these circumstances are indicative of sufficient cause contemplated under Order IX Rule 13 C.P.C., but for which, either the appellant or his counsel would have attended the court. According to the counsel, the factum of lack of communication was a cause that prevented the appellant from timely applying to the court below to get the ex parte decree set aside. It is contended by the counsel that the aforesaid reasons, beyond the control of the appellant and his counsel prevented them from contesting the cases in a proper manner and therefore, there is every reason for setting aside the impugned common orders and allowing the applications to set aside the ex parte decree after condoning the delay of 598 days.

10. After hearing the counsel for the appellant at length and evaluating the rival pleadings of the parties, we see no reason to interfere with the impugned orders for the following reasons:-

(1) The delay of 598 days, that has occurred in filing the applications is inordinate.

(2) The reasons stated in the affidavits supporting the applications are vague and do not explain the delay properly.

(3) Admittedly, service was effected in the original petitions by affixture at the residence of the respondent in the respective original petitions (appellant herein) pursuant to which he entered appearance through a counsel and written objection was also filed.

(4) A counsel was engaged by the respondent, but in the affidavit, the deponent failed to mention his name.

(5) The particulars as to the date on which the counsel took different avocation did not find a place in the affidavit.

(6) On two previous occasions also, the respondent in the respective original petitions (appellant) was set ex parte, but the matter was pursued with by the counsel in time with due notice to the respondent. Therefore, it is difficult to believe that the counsel was not vigilant in contesting the case.

(7) The Execution Petitions were filed in the year 2009 and in those, admittedly service to the respondent in the respective original petitions (appellant) was completed by affixture of notice at his last known address.

(8) In this era with facilities of easy communication, we see no reason why that facility was not resorted to either by the counsel or the respondent.

(9) The affidavit is silent as to the reason for the respondent ‘s failure to make enquiries with his counsel about the progress of the case in the meantime.

(10) The affidavit supporting the applications seeking to condone the delay and setting aside ex parte decrees were not sworn to by the respondent, but by his brother-in-law in his capacity as the Power of Attorney Holder.

11. In view of the above reasons, we are constrained to take a view against the appellant. Even after being informed about the passing of the respective ex parte decrees against the appellant, he did not care to swear to the reasons that prevented him from contesting the matter vigilantly on his own. Necessarily an application under Order IX Rule 13 has to be filed by a party seeking to set aside an ex parte decree. The said application must be accompanied by an affidavit stating the reasons for his non-contesting the matter on the fateful day which led to the passing of the ex parte decree. If the appellant could only prefer the application with delay, necessarily an application must be filed to get the delay set aside under

# Section 5 of the Limitation Act, 1963

The said application must also be accompanied by an affidavit explaining the reasons which caused the delay. The reason for non-contesting the matter must only be that of the appellant or related to him and therefore, he himself has to apply with the reasons which are strictly within his personal realm and the authenticity of those being stated by him will be lost when it is delegated to any other person by authorisation. The meaning of the word ‘affidavit’ is relevant and is available in Collins Cobuild Dictionary, which is extracted hereunder:-

“written statement which you swear is true and which may be used as evidence in a court of law”

The reasons to be sworn to must definitely be something within the personal knowledge of the party and he himself has to swear those as true. The appellant in the said circumstances has to bear in mind that his cause has been decided against him in his absence. The reason for his absence is known to him alone. Therefore, he himself must come with an application supported by his affidavit. When the reasons that prevented him are sworn to in the form of an affidavit by him, then only it will be a solemn affirmation of the reasons by him. Resorting to the practice of executing a Power of Attorney in such crucial situations and delegating a Power of Attorney Holder to explain his cause at his behest, itself amounts to laches or negligence on his part. Affidavit filed by a Power of Attorney swearing to the causes of persons, who appointed him, in a situation of the above nature is not acceptable in legal context. It is apposite in the context to extract Order IX Rule 13 hereunder:-

# 13. Setting aside decree ex parte against defendants

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.

xxxxxxxx xxxxxxx xxxxxxxxxx

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Explanation– Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree.”

It is clear from the aforesaid statutory provision also, the defendant himself has to apply for getting the ex parte decree set aside. It is not contemplated by the provision that apart from the defendants, any other person is empowered to file the application.

12. The leisurely approach of the appellant in the respective original petitions to explain the reasons through the Power of Attorney Holder is not an appreciable approach in a case of this nature. That itself is indicative of his lack of interest in contesting the case. O.P.No.71 of 2005 was one seeking maintenance and the respondent cannot abstain from paying maintenance to his wife, who has got the legitimate right to survive decently. O.P.No.673 of 2005 was one seeking realisation of money due to the petitioner from the respondent (appellant). Had there been any genuine reason to contest the original petitions, the appellant ought to have appeared on the original side and contested the matter in vehemence. The appellant’s knowledge about the pendency of the original petitions is not disputed by him. Evidently, written objections were filed in both the original petitions. Thereafter, he was set ex parte on twin occasions and he had also taken the strain to get those orders set aside. Therefore, he ought to have been more vigilant in contesting the matter. But, instead of pursuing the matter properly, he took a lenient approach and it can only be termed as laches or negligence. After fighting for three years, the respondent herein has acquired the benefit of a decree passed in her favour. Even after the passing of the decree, the appellant herein did not care to pay the money ordered, not even the money ordered as maintenance, and therefore, that the respondent herein was compelled to file Execution Petitions to get those sums realised. The second round of litigation in pursuit of the fructification of the decree has started and it is, at that juncture that the court below was approached by the respondent with petitions to set aside the ex parte decree. The maintenance ordered is only a meagre sum and the respondent being a person employed abroad, cannot get over his legal obligation to pay the same to his wife.

In view of the discussion hereinabove made, we see no reason to admit the Mat.Appeals.

In the result, both the Mat.Appeals are dismissed.

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