MOHANDASAN v. PUSHPAVENI AMMA (DIED)

THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 08.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: F.A.O.No.33 of 2024 4 Anil K. Narendran, J. JUDGMENT The appellant is the plaintiff in O.S.No.38 of 2018 on the file of the Additional Sub Court, Palakkad, a suit for partition. The suit, which was listed for trial on 05.10.2021, was dismissed for default due to the absence of the plaintiff. According to the plaintiff, he could not appear in court on 05.10.2021, since he was laid up. Moreover, his daughter met with an accident. The plaintiff filed I.A.(RP)No.1623 of 2021 in O.S.No.38 of 2018, invoking the provisions under Order IX Rule 9 of the Code of Civil Procedure,

1908. That interlocutory application was filed within the period of limitation. Defendants 1, 4 and 5 (respondents 1, 4 and 5 herein) filed counters opposing the relief sought for in the application for restoration. After considering the rival contentions, the Additional Sub Court, by the impugned order dated 21.11.2023, dismissed with cost I.A.(RP)No.1623 of 2021, for the reasons stated therein. Feeling aggrieved, the appellant-plaintiff is before this Court in this appeal, invoking the provisions under Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908.

2. On 29.02.2024, when this appeal came up admission, this Court admitted the matter on file and issued notice to the respondents by speed post, returnable within three weeks.

3. On 21.03.2024, when this matter came up consideration, the 5th respondent entered appearance through F.A.O.No.33 of 2024 counsel. 5

4. Heard the learned counsel for the appellant-plaintiff and learned counsel the 5th respondent-5th defendant. Respondents 1, 2 and 10 died prior to the filing of this appeal and therefore their status is shown accordingly in the cause title of the memorandum of appeal. Despite service of notice, none appears for respondents 3, 4, 6 to 9 and 11 to 19.

5. The learned counsel for the appellant-plaintiff would contend that when the plaintiff has shown sufficient cause for his non-appearance in court on 05.10.2021 when O.S.No.38 of 2018 was listed for trial, the Additional Sub Court, Palakkad went wrong in dismissing the application for restoration with cost. The learned counsel would point out that the application for restoration is one filed within the period of limitation.

6. The learned counsel for the 5th respondent-5th defendant would point out that O.S.No.38 of 2018, which was earlier listed twice for trail, was removed from the list based on the application filed by the plaintiff. It is for the 3rd time that the plaintiff again sought adjournment on medical ground, without producing any medical certificate. In such circumstances, the Additional Sub Court, Palakkad cannot be found fault with in dismissing the application for restoration with cost.

7. Order IX, Rule 9 of the Code provides that decree F.A.O.No.33 of 2024 6 against plaintiff by default bars fresh suit. As per sub-rule (1) of Rule 9, where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. As per sub- rule (2) of Rule 9, no order shall be made under this rule unless notice of the application has been served on the opposite party.

8. Order IX, Rule 13 of the Code provides for setting aside decree ex parte against defendant. As per sub-rule (1) of Rule 13, in any case in which a decree is passed ex parte against a defendant, he may apply to the court 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. As per the first proviso to sub-rule (1), where the decree is of such a nature that it cannot be set aside as against F.A.O.No.33 of 2024 7 such defendant only it may be set aside as against all or any of the other defendants also. As per the second proviso to sub-rule (1), 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. As per the 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 that ex parte decree.

9. In G.P. Srivastava v. R.K. Raizada [(2000) 3 SCC 54] in the context of an application filed under Order IX, Rule 13 of the Code, for setting aside an ex parte decree, the Apex Court held that, the word ‘was prevented by any sufficient cause from appearing’ occurring in Order IX, Rule 13 of the Code 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 Order IX, Rule 13 of the Code has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. F.A.O.No.33 of 2024 8

10. In G.P. Srivastava [(2000) 3 SCC 54], the Apex Court held further that, ‘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 ex parte proceedings initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not malafide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits.

11. In M. Shivananda v. M. Susheela and others [2021 (5) KHC 357] a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party held that, Order IX, Rule 9 of the Code of Civil Procedure enables the court to set the dismissal aside, if the plaintiff satisfies the court that there was sufficient cause for his non-appearance when the suit was called on for hearing. On the other hand, Order IX, Rule 13 of the Code enables the court which passed a decree ex parte to set it aside, if the defendant satisfies the court that the summons was not duly F.A.O.No.33 of 2024 9 served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. Therefore, the principle laid down by the Apex Court in G.P. Srivastava [(2000) 3 SCC 54], in the context of an application filed under Order IX, Rule 13 of the Code, apply with equal force in the consideration of an application filed under Order IX, Rule 9 of the Code.

12. In M. Shivananda [2021 (5) KHC 357] this Court held that the bar under Order IX Rule 9 of the Code does not apply in a suit for partition, since the right to enforce partition is a legal incident of a joint tenancy, as long as tenancy subsists, any of the joint tenants may sue for partition of the joint property.

13. In Peeves Enterprises v. Muhammed Ashraf [2015 (3) KHC 981], relying on the law laid down by the Apex Court in G.P. Srivastava [(2000) 3 SCC 54], a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party held that, on an application filed under Order IX, Rule 13 of the Code of Civil Procedure, the court has to find out whether the erring party has made out sufficient cause for setting aside the ex parte decree. When no negligence or inaction is imputable to the erring party and the absence was not malafide or intentional, the discretion has to be exercised in his favour, especially when the application is within the statutory time limit. In appropriate cases, the plaintiff can be compensated by adequate costs for the loss of F.A.O.No.33 of 2024 10 time and the inconvenience caused to him. But any such condition shall not be too onerous.

14. In the instant case, O.S.No.38 of 2018 filed by the appellant-plaintiff for partition was dismissed for default, due to the absence of the plaintiff, when it was listed for trial before the Additional Sub Court, Palakkad on 05.10.2021. The plaintiff filed I.A.(RP)No.1623 of 2021, invoking the provisions under Order IX Rule 9 of the Code, within the period of limitation. That application ended in dismissal with cost by the impugned order dated

21.11.2023 on the ground that no medical records were produced to show that the absence of the plaintiff on 05.10.2021 was for the reason that he was laid up and his daughter met with an accident. The plaintiff has not chosen to mount the box to substantiate his claim that there was sufficient cause for his non appearance on

05.10.2021 when the suit was listed for trial.

15. Along with this appeal, the appellant filed I.A.No.1 of 2024, invoking the provisions under Order XLI Rule 27 of the Code, seeking an order to accept Annexure 1 discharge summary dated

21.09.2021 issued by the Consultant Orthopaedic Surgeon of Paalana Institute of Medical Sciences, Kannadi P.O., Palakkad to show that his daughter met with a motor accident on 17.09.2021 in which she sustained multiple injuries including comminuted fracture of both bones right forearm. She underwent surgical procedures F.A.O.No.33 of 2024 11 and thereafter discharged on 21.09.2021, who was advised to attend a review on 04.10.2021. According to the appellant, his daughter continued outpatient treatment for two more weeks. Apart from that, the appellant was laid up due to health-related issues.

16. The suit for partition is of the year 2018. More than one occasion when the suit was listed for trail, it was removed from the list based on the applications filed by the plaintiff. It is thereafter that the suit was dismissed for default on 05.10.2021, when it was listed for trial. Considering the facts and circumstances of the case, in the light of the law laid down in the decisions referred to supra, we find that the impugned order dated 21.11.2023 of the Additional Sub Court, Palakkad can be set aside on payment of a cost of Rs.5,000/-, which shall be paid to the 5th respondent herein-5th defendant. In the result, this appeal is allowed by setting aside the order dated 21.11.2023 of the Additional Sub Court, Palakkad in I.A.(RP)No.1623 of 2021, on payment of a cost of Rs.5,000/- (Rupees Five thousand only), which shall be paid to the 5th respondent herein-5th defendant, within a period of two weeks from the date of receipt of a certified copy of this judgment and a memo to that effect shall be filed before the Additional Sub Court, in which event, I.A.(RP)No.1623 of 2021 will stand allowed, thereby F.A.O.No.33 of 2024 12 restoring O.S.No.38 of 2018 to file. Thereafter, the Additional Sub Court shall proceed with O.S.No.38 of 2018 and dispose of the same, as expeditiously as possible, at any rate, within a further period of five months. Sd/- ANIL K. NARENDRAN, JUDGE Sd/- HARISANKAR V. MENON, JUDGE AV/11/4 F.A.O.No.33 of 2024 13 APPENDIX OF FAO 33/2024 PETITIONER ANNEXURES Annexure 1 ORIGINAL DISCHARGE SUMMARY DATED 21.09.2021 ISSUED FROM PAALANA INSTITUTE OF MEDICAL SCIENCES, PALAKKAD