Kerala High Court
Joseph John vs Joseph on 3 August, 2001
ORDER K.A. Mohamed Shafi, J.
1. The respondents in I.A. 716 of 1999 in O.S.No.53 of 1996 on the file of the Subordinate Judge's Court, Thoudupuzha are the revision petitioners. The judgment passed by the District Court, Thodupuzha in C.M.A. 4 of 2000, reversing the order passed by the trial court and allowing the petitions is under challenge in this revision petition.
2. O.S. No.53 of 1996 before the trial court was filed by the revision petitioner against the respondents on 21.3.1996, claiming damages for committing trespass and waste in the plaint schedule property. Since the respondents/defendants did not file any written statement after several adjournments, the trial court set them exparte on 20.2.1998 and posted the suit for evidence to 27.2.98 and on that day an exparte decree was passed against the respondents. The respondents filed I.A. 272 of 1998 on 21.3.1998 under S. 151 of the CPC to set aside the exparte order dated 20.2.98 passed against them. That petition underwent several adjournments and ultimately on 27.3.1999, the trial court dismissed that I.A., holding that thee is no prayer in the I.A. to set aside the exparte decree. Thereafter the respondents filed I.A. 716 of 1999 under S.5 of the Limitation Act to condone the delay in filing the petition to set aside the exparte decree and I.A. 717 of 1999 under O. IX R. 13 of CPC to set aside the exparte decree. After enquiry, the trial court dismissed both the applications by order dated 8.12.1999 finding that the respondents have not made out sufficient cause to set aside the exparte decree and the petitions have been filed without bonafides. The respondents preferred CMA 4 of 2000 before lower appellate court challenging the above order. The lower appellate court by the impugned judgment, allowed the petitions on payment of cost of Rs.5000/- by the appellant within 15 days of the order and directed on payment of cost before the trial court the exparte decree will be set aside and also directed the trial court to dispose of the suit as early as possible.
3. The counsel for the revision petition submitted that I.A. 272 of 1998 was filed by the respondents to set aside the exparte decree passed against them on 27.2.1998. It is also contended that in the affidavit filed in support of I.A. 272 of 1998, the respondents have alleged that they did not appear before the court on the belief that an adjournment will be given by the trial court to file the written statement. It is also contended that in the suit the respondents were set exparte after giving 12 adjournments to file written statement and I.A. 217 of 1998 filed by them to set aside the exparte order was dismissed on 27.3.1998 till they received notice of execution of the decree, the delay in filing petition to set aside the exparte decree was caused. It is also contended by the revision petitioner that in the evidence given by D2 as W1 in those petitions he has deposed that the first defendant, who is the father of the second defendant in the suit, was hospitalized at the time the suit was posted for filing written statement and they had to obtain documents from the criminal court in criminal case pending in respect of the very same cause of action and the defendants 5 and 6 were away they could not attend the court. Therefore the revision petitioner contended that the respondents have given three different versions for their failure to file the written statement and to appear before the court in this case and the trial court, after proper appreciation of the evidence on record, dismissed the application. But the appellate court though found that there is grosss negligence on the part of the respondents allowed in appeal, reversing the well-considered findings of the trial court on payment of cost of Rs.5000/- to the revision petitioner. According to the revision petitioner, the judgment passed by the appellate court is absolutely illegal and without jurisdiction which should be set aside by this court in the above revision.
4. The respondents have contended that they have filed I.A. 272 of 1998 on 21.3.98 bonafidely believing that the suit was decreed exparte on 20.2.1998 and they were not aware of the dismissal of that I.A. 27.2.1999 till they received notice int eh execution petition filed by the revision petitioner on 14.9.1999. Therefore, they filed I.A. 716 of 1999 and 717 of 1999 before the trial court immediately thereafter to set aside the exparte decree passed on 27.21998 and to condone the delay in filing that petition. They have also contended that the second respondent and PW.1 in those petitions clearly deposed before the trial court that they bonafide believed that the decree was passed on 20.2.98 itself and that is why they have filed I.A. 272 of 1998 to set aside the exparte decree dated 20.2.1998. It is also contended that PW. 1 had deposed before the trial court that as his father was hospitalized he could not come to the court on that day when the suit was posted for filing written statement. The trial court did not appreciate the evidence on record properly inspite of the fact that no contra evidence was adduced by the revision petitioner and dismissed the petitions. According to them, the appellate court considered the entire facts of the case properly and on proper appreciation of evidence, exercised its discretion in favour of the respondents and set aside the exparte decree passed against them on terms as to very heavy cost and offering security for the suit claim. Therefore, according to them, there is absolutely no ground to interfere with the impugned judgment passed by the lower appellate court, allowing both the applications.
5. The counsel for the revision petitioner submitted that under O. IX R.13 of the CPC, the court has got jurisdiction to set aside the decree passed exparte, only if the petitioner satisfied the court that he was prevented by any sufficient cause from appearing, when the suit was called on for hearing upon such terms as to costs which the court thinks fit. Therefore it is submitted that in view of the clear finding by the lower appellate court that there was gross negligence on the part of respondents and they have not aduced any evidence to establish that they were prevented from appearing before the court due to any sufficient cause,t he lower appellate court had no jurisdiction to set aside the exparte decree on payment of costs to the revision petitioner by reversing the findings of the trial court.
6. O. IX R. 13 of the CPC reads as follows:-
"13. Setting aside decree exparte against defendant:- In any case in which a decree is passed exparte against a defendant, he may apply to the court by 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 made 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."
7. The counsel for the revision petitioner submitted that in this case the reason for non-appearance in court stated by the respondents is that they expected indulgence of the court to grant adjournment for filing written statement on 20.2.1998. Thereafter they have given two other different reasons for their non-appearance in court in the affidavits filed in support of I.A. 716 of 1999 and I.A. 717 of 1999 and the evidence of PW.1 in those petitions. Therefore the respondents not only failed to show sufficient cause for their non-appearance before the court, but they have given absolutely false and different reasons for their non-appearance in the court. Therefore according to the petitioner, on the very ground of false plea raised by the respondents the above I.A.s are liable to be dismissed.
8. The counsel for the revision petitioner submitted that the contention of the respondents that they were not aware of the dismissal of I.A. 217 of 1999 on 27.3.1999 cannot be accepted since they have admitted that they have been appearing before the criminal court in the criminal case instituted against them on the very same cause of action and the very same counsel who had been appearing for them before the civil court had been defending them in the criminal case also. Therefore gross negligence on the part of the respondent is evident from that fact also.
9. Eventhough the counsel for the respondents submitted that though the trail court did not accept their contention, the appellate court found that they have shown sufficient cause for their absence in court when they were set exparte and the exparte decree was passed in the suit and therefore, this court should not interfere in the discretion exercised by the lower appellate court in the above revision petition under S. 115 of the C.P.C.
10. In the decision reported in V.Manickam Pillai v. Mahudam Bathummal and Ors. (48 MLJ 152) Madras High Court has observed as follows:) "The setting aside the dismissal was therefore, a mere act of grace, or clemency on the part of the learned Subordinate Judge. No O. IX, R.9 Civil Procedure Code, gives no power to a court to set aside a dismissal of a suit for default of appearance as a matter of grace, not has a court any inherent power to do so. I think the principle laid down in a Neelaveni v. Narayana Reddi (I) by a Full Bench in interpreting O. IX, R.13 Civil Procedure Code, applies equally to O. IX R.9 Civil Procedure Code.")
11. In the decision reported in M/s. Gangadin Ram Krishna v. Smt. Kailashi Kuer (AIR 1961 All. 96), the Allahabad High Court has observed as follows:) "An application to set aside an exparte decree can be allowed only after an express finding by the court that it is satisfied that the applicant was prevented by a sufficient cause from appearing in the suit. It must be rejected if the court is not so satisfied."
12. In the decision reported in Mathi v. Rosamma (1992 (2) KLT SN Case No. 35 at Short Notes Page 25) a single Judge of this court has held that:-
"There should be a specific finding that there was sufficient cause for the non-appearance when the suit was called on for hearing before the application restoring the suit to file is ordered. There is no such finding in the order passed by the court below. Such a finding is a pre-requisite in order to clothe the court with jurisdiction to restore the suit to file. In the absence of such a finding, the order passed by court below is beset with a jurisdictional error or illegality."
13. In the decision reported in Vijayakumar Durgaprasad v. Kamlabai and Ors. (1995(6) SCC 148) the Supreme Court has held that without offering proper explanation for their failure to appear before the court and no material placed by the appellants showing that they were diligently prosecuting the suit, and on the other hand trial court recorded that the appellants, being in actual possession of the suit property, were intending to prolong the matter and that there was no bonafide reason or genuineness for their non-appearance and accordingly dismissed the appellant's application, and that order was declined to be interfered by the High Court in exercise of its jurisdiction under S. 115 of the C.P.C. it is not an appropriate case for Supreme Court to interfere under Article 136 of the Constitution of India.
14. In the decision reported in G.P.Srivastava v. R.K.Raizada (2000 (3) SCC 54), the Supreme Court has observed as follows:
"Under O. IX R.13 CPC an exparte 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 exparte decree. The words "was prevented by any 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. IX R.13 has to be construed as an elastic expression for which no hard and fast guidelines 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 exparte and cannot be sketched 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 exparte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by the adequate costs and the lis decided on merits."
15. The counsel for the respondent submitted that by exercising the very wide discretion vested in the court to set aside the exparte decree under O. IX R.13 of the C.P.C., the nature of the claim and the effect of the decision of the case and the rights of the parties are to be considered while considering the question whether the exparte decree passed against the applicant should be set aside or not. In support of his argument, he relied upon the decision reported in Pokku v. Ammini (1987 (2) KLT 308). He also relied upon the decision of the Supreme Court report in Collector Land Acquisition, Anantnag v. Katiji, (AIR 1987 SC 1353), in support of his argument that the court should adopt a liberal, pragmatic, reasonable and justice-oriented approach in considering whether sufficient cause is made out to condone the dela in filing the petition and to set aside the exparte decree passed against eh respondents and the exercise of jurisdiction of the court in such matters should be in a meaningful manner for the advancement of substantial justice.
16. Counsel for the respondent submitted that the above suit is filed by the revision petitioner claiming damages for cutting trees etc. from the plaint schedule property belonging to him for widening the road, and in the criminal proceedings initiated against them in respect of the very same cause of action, the court has found that they are not guilty and acquired them. He also submitted that I.A. 217 of 1998 was filed immediately after they were decreed exparte and the exparte decree was passed against them within the statutory period of limitation. The same was dismissed subsequently and the above applications are filed. Therefore according to them there is no culpable negligence or laches on the part of the respondents in prosecuting the case so as to disentitle them from condoning the delay and setting aside the exparte decree passed against them. It has to be noted that in the impugned judgment whereby the lower appellate court allowed the applications to condone the delay and to set aside the exparte decree passed against them it is observed as follows:
"...I have already stated that from the proceedings of the court below it is found that every attempt on the part of the appellants to protract the proceedings of the civil case. Even after getting 2 years, they did not file any written statement and simply prayed. After passing exparte order against the appellants and exparte decree, they have taken more than one year for filing petition for setting aside the exparte decree. These aspects shows that there is gross negligence on the part of the appellant."
17. It is clear from the above observations made by the lower appellate court that the finding of the trial court that thee is gross negligence on the part of the respondents and they have not made out sufficient cause for their non-appearance in court on the day the suit was posted for filing written statement is confirmed. Therefore in this case, it is patent that the respondents have failed to show sufficient cause for their failure to appear in court on the day the case was posted for filing written statement and on the day the suit was decreed exparte.
18. The counsel for the respondents argued relying upon the decision of a Division Bench of this Court reported in Plantation Corporation of Kerla Ltd. v. Hussain, (1998 (1) KLT 1008), that when sufficient cause is shown, the reopening of the case under O.9 R.9 is mandatory and when sufficient cause is not shown, it is discretionary and the court should exercise its discretion depending upon the facts and circumstances of the case. The counsel for the respondent submitted that by applying the principle laid down in the above decision, the discretion exercised by the lower appellate court in allowing the applications to condone the delay and to set aside the exparte decree in this case by awarding very heavy cost of Rs. 5000 to the revision petitioner is perfectly justified and cannot be interfered with.
19. In para. 15 of the above judgment, the Division Bench has observed as follows:
"If a suit is dismissed for default, not due to the fault of the plaintiff or due to reasons beyond the control of the plaintiff, needless to say when an application is filed by the plaintiff the court is about to restore the suit, since those grounds would constitute sufficient cause for his non appearance. Those are areas where the court has no discretion, and the court is bound to restore the sit. There may be cases where the plaintiff should show sufficient reasons for his non-appearance. In those case also, court is also bound to restore the suit, since the plaintiff has established sufficient cause. There may be also cases where the plaintiff could not establish sufficient casuse. Still the court should exercise its discretion depending upon facts of each case. That is the reason why legislature has given power to the courts to set said the order of dismissal "on such terms as to costs or otherwise as it thinks fit."
In paragraph 17 of the judgment, the Division Bench has observed as follows:
"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 natural justice that informs our judicial institution is that a litigant should not be deprived of a hearing unless there has been something equivalent to misconduct or gross negligence on his part. In the above mentioned decision, it was held that it was largely a matter of wise discretion 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."
20. Eeventhough the counsel for the respondents vehemenly argued before me that the above decision lays down that even in cases, no sufficient cause is made out by the petitioner, the court has got discretion to set aside the exparte decree after a careful consideration of the above judgment, passed by the Division Bench, I find the above contention of the respondent does not get any support from the above decision of the Division Bench, since the Division Bench has made it clear that the suit dismissed for default can be restored only on the petitioner making out sufficient cause and if there is some minor laches or negligence on the part of the party concerned in the prosecution of the suit, the same can be compensated by the common curative of costs.
21. It is clear from the orders passed by the trial court and the judgment passed by the lower appellate court that the respondents were not only not diligent but they were grossly negligent in this case and they have not shown sufficient cause to set aside the exparte decree passed in this case. Therefore even by construing the provisions of S.5 of the Limitation Act and O.IX R.13 of the CPC very liberally and in a pragmatic and justice oriented manner, it is not at all possible to find in this case that respondents have made out sufficient cause for non-appearance before the court, on the day the suit was taken up for hearing. Therefore, the lower appellate court had no jurisdiction to condone the delay in filing the petition and to set aside the exparte decree passed in this case in reversal of the order passed by the trial court. Hence the judgment passed by the lower appellate court is illegal and unsustainable which should be interfered by this court in revision under S. 115 of the C.P.C. Hence this C.R.P. is allowed, the impugned judgment passed by the lower appellate court is set aside and the order passed by the trial court is restored.