Kerala High Court
Subordinate Judge vs (1St Counter Petitioenr/1St
Author: P. Somarajan
Bench: P.N.Ravindran, P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY, THE 28TH DAY OF FEBRUARY 2017/9TH PHALGUNA, 1938
FAO.No. 240 of 2016 ()
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(AGAINST THE COMMON ORDER DATED 07.10.2016 IN I.A.NO.55/2016, 56/2016 &
57/2016 IN A.S.NO.6 OF 2015 ON THE FILE OF THE COURT OF THE
SUBORDINATE JUDGE, THODUPUZHA)
........................................
APPELLANT(S)
(1ST COUNTER PETITIOENR/1ST DEFENDANT
IN THE COURT BELOW AND ANOTHER):
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1. PHILOMINA
W/O.LATE ABRAHAM, ELAPPUMKAL (H),
POTTANKADU P.O., BYSONVALLEY VILLAGE,
IDUKKI DISTRICT.
2. TEENAMOL
D/O.LATE ABRAHAM, ELAPPUMKAL (H),
POTTANKADU P.O., BYSONVALLEY VILLAGE,
IDUKKI DISTRICT.
BY ADVS.SRI.K.B.PRADEEP
SMT.J.HARIPRIYA
RESPONDENT(S)/
(PLAINTIFF/COUNTER PETITIONER 1 & 2 IN IA AND
PLAINTIFF IN THE TRIAL COURT AND ANOTHER0:
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1. SISUPALAN
S/O.LATE NARAYANAN, KOLLASSERIYIL (H), 20 ACRE KARA,
BYSONVALLEY VILLAGE, IDUKKI DISTRICT.
2. TWINKLE, D/O.LATE ABRAHAM
ELAPPUMKAL (H), POTTANKADU P.O.,
BYSONVALLEY VILLAGE, IDUKKI DISTRICT.
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD
ON 28-02-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
AMV
P.N.RAVINDRAN
&
P. SOMARAJAN, JJ.
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F.A.O.NO. 240 of 2016
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Dated this the 28th day of February, 2017
JUDGMENT
P.N.RAVINDRAN, J This appeal arises from the order passed by the Court of the Subordinate Judge of Thodupuzha on 07.10.2016 on I.A.Nos.55, 56 and 57 of 2016 in A.S.No.6 of 2015. By the said order the court below dismissed the application filed by the appellants under Order XLI rule 21 of the Code of Civil Procedure as also the application to condone delay of 451 days in filing such an application. The brief facts of the case are as follows;
2. The first respondent herein had instituted O.S.No.56 of 2011 in the Court of the Munsiff of Devikulam for realisation of the sum of Rs.58,250/- together with interest and costs. He had in the plaint averrd that the said amount is due towards the cost of digging a bore well in the lands belonging to the defendants.
3. The defendants are two in number. The second defendant is the husband of the first defendant. On receipt of summons they entered appearance and filed a written F.A.O.NO. 240 of 2016 2 statement resisting the plaint. After trial the Court of the Munsiff of Devikulam dismissed the suit by judgment delivered on 30.06.2014. Aggrieved thereby the plaintiff filed A.S.No.60 of 2014 in the Court of the District Judge of Thodupuzha. Later it was transferred to the Court of the Subordinate Judge of Thodupuzha where it was taken on file and re-numbered as A.S.No.6 of 2015.
4. On receipt of notice from the appellate court, the defendants entered appearance and engaged a counsel. The learned counsel appearing for them did not however participate in the hearing of the appeal. This led to the defendants being set ex parte. The lower appellate court thereupon heard the learned counsel appearing for the plaintiff and by judgment delivered on 14.07.2015 allowed the appeal, reversed the decree and judgment passed by the trial court and decreed the suit. By the said judgment, the defendants were directed to pay to the plaintiff, the sum of Rs.61,109/- together with interest thereon @ 6% per annum on the principal sum of Rs.58,250/- from the date of the suit till realisation as also costs of the appeal with interest thereon @6% per annum from the date of decree till the date of F.A.O.NO. 240 of 2016 3 realisation.
5. After the appellante decree was passed, the second defendant (Mr.Abraham) passed away on 05.10.2015. A few months later, to be exact on 30.01.2016, the first defendant and one of her daughters (the second appellant in the instant appeal) filed I.A.No.55 of 2016 under Order XLI rule 21 of the Code of Civil Procedure with a prayer that the ex parte judgment delivered on 14.07.2015 in A.S.No.6 of 2015 may be set aside and the appeal heard and disposed of afresh on the merits. In the said application the plaintiff was joined as the first respondent and yet another daughter of the defendants was joined as the second respondent. The applicants in I.A.No.55 of 2016 has also filed I.A.No.56 of 2016 under Section 5 of the Limitation Act, 1963 to condone the delay of 451 days in filing I.A.No.55 of 2016. They had also filed I.A.No.57 of 2016 to stay further proceedings in execution of the decree in O.S.No.56 of 2011.
6. In the affidavit filed in support of I.A.No.55 of 2016 and I.A.No.56 of 2016 the first defendant had averrd that her husband the second defendant, who passed away on 05.10.2015 was suffering from cardiac problems and was F.A.O.NO. 240 of 2016 4 continuously undergoing treatment at Kolencheri and therefore, though summons was served on them from the appellate court on 04.11.2014, they could not pursue the case properly. She had averrd that they have only two daughters, who are married and are living separately and that she came to know of the disposal of the appeal only on 28.01.2016 when she went to the Munnar branch of State Bank of Travancore to operate her Savings Bank Account. She contended that it was in such circumstances that the delay of 451 days in filing the application under Order XLI rule 21 arose.
7. The plaintiff opposed the applications by filing written objections. He contended that defendant Nos.1 and 2 had upon receipt of summons from the lower appellate court appeared through counsel and therefore they were fully aware of the proceedings. He contended that the appeal was allowed by judgment delivered on 14.07.2015, the second defendant passed away only on 05.10.2015 and therefore, the illness of the second defendant cannot be put forward as a reason, for justifying the absence of the appellants on the day the appeal was called on for hearing. The lower appellate court considered the rival contentions and dismissed I.A.Nos.55, 56 F.A.O.NO. 240 of 2016 5 and 57 of 2016 by a common order passed on 27.10.2016. The court below held that the medical evidence produced before it would show that the second defendant, who was hospitalized for treatment on 14.08.2014 at MOSC Medical College hospital, Kolencheri and was discharged on 22.08.2014, passed away only on 05.10.2015, that it was in the meanwhile that summons was served from the lower appellate court on the defendants and therefore, as summons was served by the appellate court on the defendants on 04.11.2014 after the second defendant was discharged from the hospital, it cannot be said that the defendants were prevented by sufficient cause from appearing when the appeal was called on for hearing on 14.07.2015. The applicants in I.A.Nos.55, 56 and 57 of 2016 in A.S.No.6 of 2015, have aggrieved thereby filed this appeal.
8. We heard Smt.Haripriya.J, the learned counsel for the appellants. Though the first respondent/plaintiff has been served, he has not entered appearance. The second respondent, who is one among the two daughters of defendants 1 and 2 has also not been served. However having regard to the fact that second respondent sails along with the F.A.O.NO. 240 of 2016 6 appellants, we are of the opinion that it is not necessary for us to await service of notice on the second respondent.
9. The materials before us disclose that, summons was personally served on the defendants by the lower appellate court on 04.11.2014. The appeal was heard and disposed of by judgment delivered on 14.07.2015. It has come out in evidence that the 2nd defendant, who is none other than the husband of the 1st defendant was undergoing treatment for cardiac problems at MOSC Medical College Hospital, Kolencheri. The discharge summary produced before the lower appellate court discloses that he was admitted as an inpatient in the said hospital on 14.08.2014 and discharged on 22.08.2014. The judgment disposing of A.S.No.6 of 2015 also discloses that defendants 1 and 2 were initially represented by Sri.M.C.Rajesh, Advocate. The judgment disposing of the appeal also states that the respondents/defendants were set ex parte, evidently meaning thereby that the counsel who had appeared initially had reported no instructions. The lower appellate court did not however issue notice to defendants 1 and 2 before proceeding to hear and dispose of the appeal on the merits. It is also relevant in this context to note that the F.A.O.NO. 240 of 2016 7 appeal was filed in the District Court, Thodupuzha where it was taken on file and numbered as A.S.No.60 of 2014. It was later transferred to Sub Court, Thodupuzha where it was renumbered as A.S.No.6 of 2015. The Sub Court did not however deem it appropriate to issue notice to the respondents/defendants in the suit before proceeding to hear and dispose of the appeal after hearing the learned counsel for the appellant/plaintiff alone. It was that judgment, which was sought to be set aside in the instant applications. The reason stated by the applicants in I.A.Nos. 55 of 2016 and the connected applications, is that as the second defendant was undergoing continuous treatment for cardiac problems, they did not pay proper attention to the case. The court below did not accept that contention on the ground that no document was produced before it to show that the second defendant, who later passed away on 05.10.2015 after the appeal was disposed of ex parte was continuously undergoing treatment at MOSC Medical College hospital, Kolencheri. The view taken by the lower appellate court is in our opinion a hyper technical view. Once it is shown that the second defendant had undergone treatment for about 8 days in a Medical College F.A.O.NO. 240 of 2016 8 hospital for cardiac problems and the fact that he later passed away on 05.10.2015, the court below ought to have in our opinion taken a lenient view and afforded the applicants an opportunity to have the appeal heard and decided on the merits. The court below lost sight of the fact that the priority of a litigant, who is suffering from cardiac problems and his wife, who is also a party to the litigation, will be to pay attention to the patient and his health conditions and to provide him medical care and that they would not in the ordinary course give priority to the litigation. The court below ought to have in our opinion, having regard to the ordinary course of human conduct taken a lenient view and afforded the appellants an opportunity to put forward their submissions especially in view of the fact that it was without affording them an opportunity to engage another counsel that the court below proceeded to dispose of the appeal after hearing the plaintiff's counsel alone. In such circumstances, we are of the considered opinion that the instant appeal deserves to be allowed.
10. We accordingly allow the appeal, set aside the impugned order as also the ex parte judgment delivered by the Court of the Subordinate Judge of Thodupuzha on 14.07.2015 F.A.O.NO. 240 of 2016 9 in A.S.No.6 of 2015, restore the appeal to file and direct the lower appellate court to dispose of the appeal afresh, after affording the plaintiff an opportunity to bring on record the legal heirs of the deceased second defendant. The plaintiff and the first defendant shall appear through counsel before the court below on 27.03.2017. The court below shall thereupon dispose of the appeal afresh expeditiously and in any event within a period of four months from that date, after affording the appellant/plaintiff an opportunity to bring on record, the legal heirs of the deceased second defendant.
Sd/-
P.N.RAVINDRAN, JUDGE sd/-
P. SOMARAJAN, JUDGE AMV/04/03/2017 /TRUE COPY/ P.A.TO JUDGE