Kerala High Court
Rahim vs Mohammed Haneefa on 22 October, 2025
Author: T.R. Ravi
Bench: T.R.Ravi
2025:KER:78566
OP(C) NO. 2422 OF 2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 22ND DAY OF OCTOBER 2025 / 30TH ASWINA, 1947
OP(C) NO. 2422 OF 2014
AGAINST THE ORDER IN IA NO.375 OF 2013 AND IN IA NO.374
OF 2013 IN OS NO.18 OF 2011 OF SUB COURT, ATTINGAL
PETITIONERS/COUNTER PETITIONERS/PLAINTIFFS:
1 RAHIM
AGED 41 YEARS
S/O. ABDULKAREEM, RAFA,
KAZHAKUTTOM,
THIRUVANANTHAPURAM.
2 DR. BENNY
AGED 40 YEARS
S/O. PURENDARAN,
RESIDING AT AASHIRVAAD,
T.C. 2/1997(1), KAZHAKUTTOM,
ATTIPRA VILLAGE,
THIRUVANANTHAPURAM.
*ADDITIONAL PETITIONERS 3 TO 6 IMPLEADED
3 SHEEBA RAHIM
W/O.A.RAHIM,AGED 33 YEARS
RESIDING AT RAFA, KAZHAKOOTAM,
THIRUVANANTHAPURAM
4 RISFANA RAHIM (MINOR)
AGED 10 YEARS
D/O A RAHIM, RESIDING AT RAFA,
KAZHAKOOTAM, THIRUVANANTHAPURAM
5 RISWAN A RAHIM (MINOR)
AGED 6 YEARS
S/O A RAHIM, RESIDING AT RAFA,
KAZHAKOOTAM, THIRUVANANTHAPURAM
2025:KER:78566
OP(C) NO. 2422 OF 2014
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6 RUKSANA RAHIM (MINOR)
AGED 4 YEARS
D/O A RAHIM, RESIDING AT RAFA,
KAZHAKOOTAM, THIRUVANANTHAPURAM
*ADDITIONAL PETITIONERS 3 TO 6 IMPLEADED AS PER THE
ORDER DATED 22.08.2017 IN IA 1470/2017.
BY ADV SRI.THIRUMALA P.K.MANI
RESPONDENTS/PETITIONERS/DEFENDANTS:
1 MOHAMMED HANEEFA
S/O. SAHEED, VILAYIL VEEDU,
KOITHURKONAM.P.O., ANDOORKONAM VILLAGE,
THIRUVANANTHAPURAM.
FROM PANDARATHOPPU VEEDU,
CHERUMANTHURUTHU, KADINAMKULAM MURI,
KADINAMKULAM VILLAGE,
THIRUVANANTHAPURAM 695 584.
2 KHADEEJA BEEVI
W/O. MOHAMMED HANEEFA,
VILAYIL VEEDU, KOITHURKONAM.P.O.,
ANDOORKONAM VILLAGE,
THIRUVANANTHAPURAM,
FROM PANDARATHOPPU VEEDU,
ACHERUMANTHURUTHU, KADINAMKULAM MURI,
KADINAMKULAM VILLAGE,
THIRUVANANTHAPURAM.
BY ADV SRI.LIJU. M.P
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 22.10.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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OP(C) NO. 2422 OF 2014
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T.R. RAVI, J.
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O.P.(C). No.2422 of 2014
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Dated this the 22nd day of October, 2025
JUDGMENT
The original petition has been filed challenging Exts.P9 & P10 orders, whereby, an application to condone delay in filing an application for setting aside an ex parte decree and a petition to set aside the ex parte decree have been allowed. The short facts required for disposing of the case are as follows: The petitioner is the plaintiff in a suit for money. The suit was decreed as per Ext.P2 ex parte decree on 07.09.2012. Ext.P3 application to set aside the ex parte decree was filed by the 1st respondent. The reason stated is that even though the Advocate appearing for the 1st respondent had submitted that a written statement has been filed along with a petition for accepting the same, the Court recorded that there was no representation and called the defendants absent and set them ex parte and posted the case on 07.09.2012 for trial. It is submitted that on 07.09.2012 the case was decreed after taking the evidence of the plaintiff. Ext.P3 petition was dismissed for default on 15.01.2013 as per Ext.P4 2025:KER:78566 OP(C) NO. 2422 OF 2014 4 order. Ext.P4 order says that the 1st respondent failed to take steps. Instead of challenging Ext.P4 order, the defendants filed Ext.P5 petition almost a month later with a petition to condone the delay. The said petition is also a petition to set aside the ex parte decree. A reading of the affidavit in support of the petition would show that the reasons stated in Exts.P3 & P5 are different. In Ext.P3, it is stated that there was no representation for the defendants since the Advocate concerned was in another Court. The difference in the pleadings cannot be brushed aside. In Ext.P3, there is an allegation made against the Court by stating that even though the counsel had represented that a written statement has been filed along with the petition, the Court had noted that there was no representation. Ext.P5 does not contain such an allegation. Instead, the blame was accepted and it is stated that the Advocate was not there and that there was no representation too. Another aspect is that Ext.P5 does not state anything about Ext.P3 application and its dismissal. This again cannot be treated as a mistake and can only be held to be done with purpose. The difference in the statements in the affidavits are so glaring that necessarily it has to be said that one of the 2025:KER:78566 OP(C) NO. 2422 OF 2014 5 affidavits is false. The trial Court considered the second application for setting aside the ex parte decree filed along with the petition to condone delay and allowed both the petitions by order dated 24.07.2014. The Court treated the petition as one under Order IX Rule 13 of CPC and held that in view of Order IX Rule 4 of CPC, the second application is maintainable. The Court found that the second application is barred by limitation. But held that since an application for condoning the delay was filed, the application can be considered as maintainable. On facts, the Court held that failure of counsel to appear cannot be held against the defendants. The Court did not consider the difference in the affidavits filed in the first petition and in the second petition. The bonafides of the submissions were not looked into. The fact that the filing of the earlier application and its dismissal was not stated in the second application was also overlooked. The application appears to have been allowed solely based on Section 141 of the Code of Civil Procedure, which says that the procedure provided in the Code with regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction and the explanation to the section 2025:KER:78566 OP(C) NO. 2422 OF 2014 6 says that proceedings will include proceedings under Order IX.
2. The counsel for the petitioner placed reliance on the decision of a learned Single Judge at the Calcutta High Court in Hazi Rustam Ali V Emamnuddin Khan and Others (1981 KHC 1514), wherein the learned Judge held that in a suit which is decreed ex parte and an application under Order IX Rule 13 for restoration of the suit was also dismissed by default the two remedies available to the defendant was either to file an application under Order IX Rule 9 read with Section 141 for restoration of the application dismissed for default or an appeal under Order 43 Rule 1(c). It is submitted that the remedy was not to file a second application for the same relief. I find considerable force in the submission of the counsel for the petitioner. If such applications were to be allowed, it will be creating a possibility of filing any number of applications for setting aside ex parte decrees, whatever be the result of the applications filed earlier. The intent and purport of Section 141 or Order IX Rule 13 cannot be as above. If such an interpretation is permitted, it will only lead to undue delay in the proceedings, since an unscrupulous defendant can keep on filing applications 2025:KER:78566 OP(C) NO. 2422 OF 2014 7 and getting the same dismissed for default.
In the result, this original petition is allowed. Exts.P9 and P10 are set aside. The dismissal is without prejudice to any other remedies that the defendant may have in the situation. It is ordered that the period spent before this Court in this original petition shall stand excluded for the purpose of continuing with the execution petition.
Sd/-
T.R. RAVI JUDGE Pn 2025:KER:78566 OP(C) NO. 2422 OF 2014 8 APPENDIX OF OP(C) 2422/2014 PETITIONERS' EXHIBITS EXT.P1 TRUE PHOTOCOPY OF THE PLAINT IN O.S. NO.
18/2011 PENDING BEFORE THE SUB COURT,
ATTINGAL.
EXT.P2 TRUE PHOTOCOPY OF THE JUDGMENT DATED
7-9-2012 IN O.S. NO. 18/2011 OF THE SUB
COURT, ATTINGAL.
EXT.P3 TRUE PHOTOCOPY OF THE PETITION TO SET ASIDE
THE EXPARTE DECREE I.A. NO. 2035/12.
EXT.P4 TRUE PHOTOCOPY OF THE ORDER DATED 15-1-13 IN
I.A. NO. 2035/12.
EXT.P5 TRUE PHOTOCOPY OF THE 2ND APPLICATION FILED
BY THE RESPONDENTS TO SET ASIDE THE EXPARTE DECREE I.A. NO. 375/2013.
EXT.P6 TRUE PHOTOCOPY OF THE DELAY CONDONATION APPLICATION FILED BY THE RESPONDENTS ALONG WITH THE EXT.P5, I.A. NO. 374/2013.
EXT.P7 TRUE PHOTOCOPY OF THE OBJECTION FILED BY THE PETITIONERS TO THE PETITION TO SET ASIDE THE EXPARTE DECREE.
EXT.P8 TRUE PHOTOCOPY OF THE OBJECTION FILED TO THE PETITION TO CONDONE THE DELAY.
EXT.P9 TRUE PHOTOCOPY OF THE ORDER IN I.A. NO.
375/13 IN O.S. NO. 18/11.
EXT.P10 TRUE PHOTOCOPY OF THE ORDER IN I.A. NO.
374/13 IN O.S. NO. 18/2011.