Research › Search › Judgment

Kerala High Court · body

2017 DIGILAW 459 (KER)

ANILAN v. SATHI

2017-03-03

P.N.RAVINDRAN, P.SOMARAJAN

body2017
JUDGMENT : P.N. Ravindran, J. The appellants are defendants 2 and 3 in O.S. No. 307 of 2011 on the file of the Court of the Munsiff of Kochi. The first respondent is the plaintiff and respondents 2 to 4 are defendants 1, 4 and 5 respectively therein. The relief prayed for in the suit is to pass a decree for partition of the plaint schedule property into six equal shares and allotment of one such share to the plaintiff with future mesne profits. The first respondent/plaintiff had also prayed for a permanent prohibitory injunction restraining defendants 1 to 3 from committing acts of waste or from cutting and removing trees or from assigning or encumbering the plaint schedule property or any part thereof. 2. Upon receipt of summons the appellants entered appearance through counsel and filed a written statement dated 24.11.2011. Since defendants 1, 4 and 5 did not enter appearance or file a written statement, they were set exparte. After the appellants filed their written statement, issues were framed on 15.12.2011. The suit thereafter stood posted for trial on 7.6.2013. On that day, the appellants (defendants 2 and 3) did not appear. With the result, they were set exparte. Thereupon, exparte evidence of the plaintiff was recorded, arguments were heard and the suit was adjourned to 13.6.2013 for judgment. On that day, the suit was decreed as prayed for. The appellants thereupon filed I.A.No.1453 of 2013 on 15.6.2013 with a prayer that the exparte decree passed on 13.6.2013 may be set aside. That application was heard and allowed by the trial court by the order passed on 26.5.2013 subject to payment of the sum of Rs. 1,000/- as costs on or before 16.2.2014. The suit thereafter again came up for trial on 1.12.2015. The appellants (defendants 2 and 3) were again set exparte and the suit was decreed exparte on 4.12.2015. They thereupon filed I.A.No.3309 of 2015 on 16.12.2015 with a prayer to set aside the exparte decree passed on 4.12.2015 through another counsel after getting the consent of the counsel who was appearing for them earlier. By order passed on 24.11.2016, the court below dismissed the said application. Hence this appeal. 3. We heard Sri. Jojo A.V., learned counsel appearing for the appellants, Sri.Anoop V. Nair, learned counsel appearing for the first respondent/plaintiff and Smt.Vanaja Madhavan, learned counsel appearing for the second respondent (first defendant). By order passed on 24.11.2016, the court below dismissed the said application. Hence this appeal. 3. We heard Sri. Jojo A.V., learned counsel appearing for the appellants, Sri.Anoop V. Nair, learned counsel appearing for the first respondent/plaintiff and Smt.Vanaja Madhavan, learned counsel appearing for the second respondent (first defendant). Though the other respondents have been served, they have not entered appearance through counsel. We have also gone through the pleadings and the materials on record. The case set out by the appellants in the affidavit filed in support of I.A.No.3309 of 2015 is that their lawyer, whom they had initially engaged, did not inform them about the fact that the suit stood listed for trial on 1.12.2015. They had in the affidavit filed in support of the application stated that earlier also this led to the exparte decree which was passed on 13.6.2013. They had in paragraph 4 of the affidavit filed in support of the application stated that on 1.12.2015 they received a letter from their counsel intimating them that he has decided to stop practice and calling upon them to collect the relinquishment letter from his office. They had further averred that upon receipt of the said letter which bears the date 26.11.2015, they approached the counsel on 2.12.2015, that thereupon the appellants along with their former counsel approached another counsel and thereafter, on verification on 4.12.2015 it came to their notice that an exparte decree has been passed against them once again on 4.12.2015. The appellants had also averred that on the very same day they obtained a relinquishment letter from their former counsel as also the case records, that in the relinquishment letter the learned counsel had purposefully noted the date as 1.12.2015 instead of 4.12.2015, that when it was brought to his notice he corrected it as 4.12.2015 which was the date on which the consent letter and the case bundles were entrusted to them. The appellants had further averred that as their former counsel was guilty of professional misconduct they have moved the Bar Council of Kerala and that it was solely on account of the failure of the counsel to inform them in time that the case stood listed for trial on 1.6.2015 that they were set exparte. 4. The plaintiff resisted the application by filing a counter affidavit. 4. The plaintiff resisted the application by filing a counter affidavit. He contended that the defendants were once set exparte and the said exparte decree was set aside on payment of costs. They also contended that it was on account of the willful default of the appellants that they were set exparte. The plaintiff contended that there was default on the part of the appellants to appear notwithstanding the intimation given by the counsel. The court below after considering the rival contentions dismissed the application by the impugned order on the short ground that the earlier application to set aside the exparte decree was allowed on account of the fraud practiced by the appellants/defendants 2 and 3 on the court. Such a finding was entered in view of the statement made by the second defendant who was examined as DW1 to the effect that the signature in the affidavit filed in support of I.A.No.1453 of 2013 to set aside the exparte decree passed on 13.6.2013 is not that of Biji, his wife. It is relevant in this context to note that the plaintiff had not challenged the order passed by the court below on I.A.No.1453 of 2013 whereby the exparte decree passed on 13.6.2013 was set aside. 5. We have gone through the affidavit filed in support of I.A.No.1453 of 2013. The said application was in fact one filed by Smt. Biji, wife of Hari, in her capacity as the power of attorney of defendants 2 and 3. The cause title to the said application discloses that neither Anilan nor Hari (defendants 2 and 3) were arrayed as petitioners, instead Biji, their power of attorney, was shown as the applicant. This error was not noticed by the court when it entertained the application. It was also not objected to by the plaintiff. It was without noticing the error in the cause title that the said application was allowed subject to payment of costs Rs. 1,000/-. This error was not noticed by the court when it entertained the application. It was also not objected to by the plaintiff. It was without noticing the error in the cause title that the said application was allowed subject to payment of costs Rs. 1,000/-. In view of the fact that the person who had signed the affidavit filed in support of I.A.No.1453 of 2013 is the wife of third defendant, her status being not in dispute, and the court below having allowed that application overlooking the error in the proceedings, the court below was not, in our opinion, justified in relying on the statement made by DW1 that the signature in the affidavit filed in I.A.No.1453 of 2013 is not that of his wife to throw out the application filed by the appellants to set aside the exparte decree passed on 4.12.2015. The materials on record disclose that the counsel appearing for the appellants had sent a letter to them calling upon them to engage another counsel for the reason that he has already stopped practice. The No Objection Certificate which accompanied the Vakalathnama filed along with the application to set aside the exparte decree bears the date 1.12.2015. That date was corrected in ink as 4.12.2015. It is thus evident that on 1.12.2015, when the suit stood listed for trial, the defendants' counsel was not willing to represent them. Such being the situation, we are of the opinion that the court below should have exercised its discretion in favour of the appellants and set aside the exparte decree at least on terms. We accordingly allow the appeal, set aside the impugned order and also the exparte decree passed in the suit subject to the condition that the appellant shall, on or before 20.3.2017 deposit in the court below for payment to the first respondent/plaintiff, the sum of Rs. 2,500/- as costs. In the event of default, this appeal shall stand dismissed. The court below shall, in the event of the appellants depositing the sum of Rs. 2,500/- as costs within the time limit stipulated above, try and dispose of the suit afresh expeditiously and in any event, before 30.6.2017. The parties shall in order to enable the court below to act as directed above, appear through counsel along with a copy of this judgment on 21.3.2017.