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2005 DIGILAW 232 (KER)

Varghese v. Sherif

2005-03-21

K.T.SANKARAN

body2005
Judgment :- The plaintiffs is O.S.No.292 of 1997 on the file of the Court of Munsiff of Thodupuzha challenges the order in I.A.No.535 of 2000 by which the Court below allowed the prayer made by defendants 1 to 3 to set aside the ex parte decree passed on 11.2.2000. 2. The suit was filed in August 1997 by the Revision Petitioners for a mandatory injunction to restore the compound wall on the southern side of the plaint schedule property, for prohibitory injunction restraining defendants from entering into the property and for damages of Rs.95,000/-. The case of the plaintiffs is that the compound wall on the southern side of the plaint schedule property was demolished by the defendants on 18/7/1997 after trespassing into the plaint schedule property. The compound wall was having a height of 8 feet and a length of 213 feet. There is a lane on the southern side of the compound wall. The defendants do not lay any claim over the plaint schedule property or the compound wall. Their contention was that the compound wall was demolished by the plaintiffs themselves in an attempt to encroach upon the lane on the southern side. 3. I.A.No.1385 of 1997 was filed by the plaintiffs for an interim mandatory injunction for restoration of the compound wall. I.A.No.1238 of 1997 was filed by the plaintiffs for temporary injunction restraining the defendants from using the portion, which was allegedly annexed to the lane. The defendants on the other hand filed I.A.No.1325 of 1997 for a temporary injunction against the plaintiffs restraining them from interfering with their right to use the pathway. I.A.Nos.1328 of 1997 and 1325 of 1997 were disposed of by a common order dated 24.9.1997, the application filed by the plaintiffs was allowed and the application filed by the defendants was dismissed. That order has become final. I.A.No.1385 of 1997 for interim mandatory injunction was allowed by the trial court as per order dated 25.8.1997. Against that order, defendants 1 to 12 filed C.R.P.No.1539 of 1997 before this Court. That revision was dismissed on 1.10.1997. Thereafter, the compound wall was constructed in the presence of the Commissioner and with the aid of the Police. The Commissioner has assessed the cost of construction of the compound wall at Rs.41,012/- (Rupees Forty One Thousand and Twelve only). Against that order, defendants 1 to 12 filed C.R.P.No.1539 of 1997 before this Court. That revision was dismissed on 1.10.1997. Thereafter, the compound wall was constructed in the presence of the Commissioner and with the aid of the Police. The Commissioner has assessed the cost of construction of the compound wall at Rs.41,012/- (Rupees Forty One Thousand and Twelve only). The plaintiffs had filed I.A.No.1239 of 1997 for attachment of the property belonging to defendants 1 to 3 to satisfy the possible decree for damages that may be granted in favour of the plaintiffs. That application was allowed and the attachment was effected. 4. Defendants 1 to 12 were set ex parte on 4.11.1997. On the application of the defendants, that order was set aside and thereafter the defendants filed the written statement. 5. The suit was listed for trial on 5.2.2000. On that day, an application for adjournment was filed by defendants 1 to 3 stating that the first defendant was laid up and therefore he could not attend the court. The application for adjournment was dismissed and the defendants were set ex parte. On 5.2.2000, the plaintiff was examined. The trial court passed an ex parte decree on 11.2.2000. On 26.2.2000, I.A.No.535 of 2000 was filed by defendants 1 to 3 under Order IX Rule 13 of the Code of Civil Procedure to set aside the ex parte decree. The court below allowed that application by the order impugned in this revision. The defendants 1 to 3 produced a medical certificate dated 23.2.2000 in I.A.No.535 of 2000 to prove that the first defendant was advised rest from 4.2.2000 to 6.2.2000. The only reason stated by the court below for setting aside the ex parte decree is that such a medical certificate was produced by defendants 1 to 3 and that there is no reason to hold that the affidavit filed by the first defendant is untrue. The court below has not found that the defendants or any of them were prevented by sufficient cause from appearing before the court when the suit was posted for trial and hearing. The court below has also not considered any of the facts and circumstances mentioned above to consider whether the application is bona fide. The court below has not found that the defendants or any of them were prevented by sufficient cause from appearing before the court when the suit was posted for trial and hearing. The court below has also not considered any of the facts and circumstances mentioned above to consider whether the application is bona fide. The court has also not considered whether any attempt was made by the defendants to protract the trial of the case, which is the specific case put forward by the plaintiffs in their objection. 6. In Mathai v. Rosamma, 1992 (2) KLT SN 25, Case No.35, Justice Paripoornan [as His Lordship then was] held that, there should be a specific finding that there was sufficient cause for non appearance when the suit was called for hearing, before the application restoring the suit to file is ordered and that such a finding is a pre-requisite in order to cloth the Court with the jurisdiction to restore the suit. The Honourable Supreme Court in the decision reported in G.P. Srivastava v. R.K. Raizada, (2000) 3 SCC 54 has held thus: “Under O.9, R.13 CPC, an ex parte decree passed against a defendant can be set aside upon satisfaction of the court that either the summons were not duly served upon the defendant or he was prevented by any “sufficient cause” from appearing when the suit was called on for hearing. Unless “sufficient cause” is shown for non appearance of the defendant in the case on the date of hearing, the Court has no power to set aside an ex parte decree. The words “was prevented by sufficient cause from appearing” must be liberally construed to enable the Court to do complete justice between the parties, particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of O.9, Rule 13 has to be construed as an elastic expression for which no hard and fast guideline can be prescribed. The Courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The “sufficient cause” for non appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. The Courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The “sufficient cause” for non appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If “sufficient cause” is made out for non appearance of the defendant on the date fixed for hearing when the ex parte proceedings were initiated against him, he cannot be penalized for his previous negligence which had been overlooked and thereby condoned.” In the decision of a Division Bench of this Court, reported in Thomas P. Abraham v. Aleyamma Abraham, 2003 (3) K.L.T. 864, it was held thus: “However, if on facts court finds that the attempt of the petitioner is only to delay the claim of the plaintiff deliberately with mala fide intention or ill motive in a given case, the court could reject it. We have seen in many suits for money, deliberately defendant remain ex parte to gain time and later try to get the ex parte decree set aside and when the suit is ultimately decreed comes up with an appeal along with delay petition and indigent application and thus stall the proceedings. In such circumstances, the Courts have to be very vigilant so that its medium shall not be abused. Only if sufficient cause has been shown, the courts must be liberal in setting aside ex parte decree by imposing such terms as to costs”. In Sreedhara Kurup v. Mickel, 1968 K.L.T. 599 Justice Krishna Iyer (as His Lordship then was) held thus: “The touchstone in a case under Order IX Rule 9 CPC is the presence of “sufficient cause” for non appearance when the case was called on for hearing. If there is no sufficient cause, the court cannot restore the suit as a matter of grace. On the other hand, it has always to be remembered that the broad principle of nature justice that informs our judicial institution is that a litigant should not be deprived of hearing unless there has been something equivalent to misconduct or gross negligence on his part. In most cases in which the party has been absent at the time of hearing and applies for restoration of the suit later, there is some degree of carelessness or negligence on his part. In most cases in which the party has been absent at the time of hearing and applies for restoration of the suit later, there is some degree of carelessness or negligence on his part. It also happens that in many cases, the excuse put forward for absence is either a thin invention or one not satisfactorily established, even if true. It is largely a matter of wise discretion to be exercised by the court, bearing in mind the wholesome principle that the right of a party to be heard should be negatived only if there is gross negligence or gross carelessness and that if some steps have been taken and application for restoration has been made with some diligence and some evidence adduced making out a sufficient cause for absence, restoration should be ordered, minor misconduct or laches being corrected by the common curative of costs. The brooding spirit of natural justice must be in the background while ascertaining whether there is sufficient cause. A strict and narrow construction defeats the ends of justice, which could be reached only after a fair fight between the disputants.” 7. The counsel for the petitioner argued that the court below has not arrived at a finding that the defendants or any of them were prevented by sufficient cause from appearing before the court when the suit was taken up for hearing. He also submitted that the application for setting aside the ex parte decree was only by defendants 1 to 3, while defendants 4 to 12 did not make any application. The contention taken by the petitioners in the Revision is that the decree has become final as against defendants 4 to 12 and, therefore, the ex parte decree can be set aside only as against defendants 1 to 3, even if the court found that defendants 1 to 3 had made out sufficient cause for setting aside the ex parte decree. This part of the submission made by the counsel for the petitioners cannot be accepted since the decree is an indivisible one and if the setting aside of the ex parte decree is confined to defendants 1 to 3 alone, there are chances of conflicting decrees being passed. This part of the submission made by the counsel for the petitioners cannot be accepted since the decree is an indivisible one and if the setting aside of the ex parte decree is confined to defendants 1 to 3 alone, there are chances of conflicting decrees being passed. But, there is merit in the submission made by the petitioners that the court below has not arrived at any finding touching upon the ingredients to be proved in an application under Order IX, Rule 13, C.P.C. The counsel for respondents 1 to 3, on the other hand submitted that the court has exercised a discretion in setting aside the ex parte decree and that order cannot be interfered with under Section 115 of the Code of Civil Procedure. He also submitted that a liberal view is to be taken in the matter of setting aside ex parte decree. 8. Taking into account the facts and circumstances of the case, though I do not agree with the reasoning made by the court below, it is only just and proper not to interfere in that part of the order by which ex parte decree was set aside. By allowing an application under Order IX, Rule 13, an opportunity is granted to the defendants to contest the case. There is no vested right in the plaintiffs to get a decree uncontested. Normally no prejudice would be caused to the plaintiffs if an ex parte decree is set aside and the only difficulty to which the plaintiffs will be put is that they have to contest the matter on the merits. The Courts have always taken a lenient view in the matter of setting aside ex parte decree and in the matter of restoration of suits dismissed for default. 9. At the same time, setting aside the ex parte decree on the mere asking of it would not be justified in all cases. There may be cases where the conduct of the defendant who applies for setting aside ex parte decree may be contumacious and which may tend to protract the trial of the case. The court has to see whether the request for setting aside the ex parte decree is genuine and whether the defendant has a reasonably good case to contest. In the case on hand, the defendants have no case that they are the owners of the plaint schedule property. The court has to see whether the request for setting aside the ex parte decree is genuine and whether the defendant has a reasonably good case to contest. In the case on hand, the defendants have no case that they are the owners of the plaint schedule property. They have also no case that the compound wall belongs to them. It is not in dispute that the compound wall having a height of 8 feet and a length of 213 feet was demolished. The case put forward by the defendants is that the compound wall was demolished by the plaintiffs themselves which was not accepted by the court below while disposing of the interlocutory applications for injunction. Therefore, on the available materials already on record and the finding rendered by the court in the interlocutory applications, it is clear that the defendants did not act fairly and their actions were high handed. In such cases, the ex parte decree passed against the defendants cannot be set aside as a matter of course. Conditions could be imposed by the court for setting aside the ex parte decree. 10. This Court in Karuppan @ Cherunni v. Sankaran Nair 1972 KLT 643, held that the Court is not powerless to give a direction to deposit cost of the suit or the decree amount in part or full before an ex parte decree is set aside. The wording “upon such terms as to” in the rule has to be read as applying not only to costs but also to “payment into court or otherwise as it thinks fit”. The wording of the rule is comprehensive enough to include conditions as payment into court – decretal amount or such other conditions as the Court thinks fit. In Kora v. Varkey, (1953) 8 DLR Travancore Cochin 660, it was held that Order IX Rule 13 of the Code of Civil Procedure empowers the court to impose conditions in allowing applications for setting aside ex parte decree and that the conditions may relate to costs, payment into court or otherwise. The expression “otherwise” is wide enough to comprise a case of a direction to retain the benefits obtained by him upon the execution of decree, which is sought to be set aside. The expression “otherwise” is wide enough to comprise a case of a direction to retain the benefits obtained by him upon the execution of decree, which is sought to be set aside. In Antony Varkey v. South Indian Bank Limited, 1991 (1) KLT 414, this Court held that the words “upon such terms as to” in Rule 13 of Order IX CPC cannot be confined to costs only and the rule enables the Court to order “payment into court or otherwise as it thinks fit”. The Honourable Supreme Court in State of Orissa v. Sibaram Barai, JT (1999) 6 SC 395 = 1996 (2) KLT SN 40. Case No.44, held that, when the trial court itself set aside the ex parte decree subject to payment of costs, the High Court in Revision was required to consider whether the trial court properly considered the facts to set aside the ex parte decree and the case called for interference. It was further held that the High Court cannot exceed its jurisdiction in directing the appellant to deposit the entire decretal amount and the costs. In that case, the defendant State of Orissa, was set ex parte and the trial court set aside the ex parte decree on payment of Rs.50/-. The High Court reversed that order in Revision and directed the defendant to deposit the entire decretal amount and costs. 11. In the present case, the trial court completely ignored the facts and circumstances of the case and it relied only on the medical certificate produced in the case and the affidavit filed by the first defendant. Even as per the medical certificate, the first defendant was advised rest from 4.2.2000 to 6.2.2000. The ex parte decree was passed on 11.2.2000. There is no case that the other defendants, eleven in number, were unable to attend the Court on the date fixed for trial. In the matter of an application under Order IX, Rule 13 of the Code of Civil Procedure, the Court has to arrive at a finding whether in the facts and circumstances of the case, the discretion should be exercised or not. In the matter of an application under Order IX, Rule 13 of the Code of Civil Procedure, the Court has to arrive at a finding whether in the facts and circumstances of the case, the discretion should be exercised or not. That discretion is to be exercised by the court taking into account all the relevant facts and circumstances, in a case where the defendant is guilty of contumacious conduct or where the defendants has violated the order of the Court or if the defendant is consistently indulging in protracting the case or the defendant was not co-operating with the Court in the disposal of the suit or in any other like circumstance, the Court need not necessarily set aside the ex parte decree without imposing any condition for allowing the application. The Court could very well impose conditions for setting aside the ex parte decree. 12. In the fats and circumstances of the present case, it is only just and proper to direct defendants 1 to 3 to deposit Rs.41,012/- (Rupees Forty One Thousand and Twelve), i.e. the amount spent by the plaintiffs to restore the compound wall to its original condition, as a condition for setting aside the ex parte decree. Defendants 1 to 3 are granted two months time to make the deposit. If the amount is deposited, the plaintiffs are entitled to withdraw that amount on furnishing security. If the amount is not deposited by defendants 1 to 3. I.A.No.535 of 2000 filed by them to set aside the ex parte decree shall stand dismissed. The C.R.P. is allowed to the extent indicated above and the order impugned is modified accordingly. No costs.