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: