IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 WP(C).No. 32036 of 2008(L) -------------------------- CMA.3/2007 of SUB COURT, PAYYANNUR I.A.541/06 IN OS.248/2003 of MUNSIFF COURT, PAYYANNUR .................... PETITIONER(S): --------------- 1. DEHANADATH PARAMBIL KOTTARATHIL LAKSHMI AMMA, D/O. CHEEYYAYI AMMA, AGED 77 YEARS, AGRICULTURIST, RESIDING AT REMANTHALI AMSOM AND DESOM, P.O. RAMANTHALI. 2. KUNHIKRISHNAN, S/O.P.K. LAKSHMI, AGED 42 YEARS, BUSINESS, RAMANTHALI AMSOM AND DESOM, KANNUR DISTRICT. BY ADV. SRI.M.V.AMARESAN RESPONDENT(S): --------------- 1. DEHANADATH PARAMBIL KOTTARATHL BHARGAVI AMMA, D/O. JANAKI AMMA,AGED 64 YEARS, AGRICULTURIST, RESIDING AT RAMANTHALI AMSOM AND DESOM, P.O.RAMANTHALI, KANNUR DISTRICT. 2. PANKAJAKSHMI AMMA, AGED 54 YEARS, TEACHER, RESIDING AT KADANNAPPALLY AMSOM AND DESOM, P.O. KADANNAPPALLY, KANNUR DISTRICT. ADV. SRI.MAHESH V RAMAKRISHNAN FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.32036/08 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE I.A.NO.541/06 IN O.S.NO.248/03 DATED 21.3.2006. EXT.P2: COPY OF COUNTER FILED BY THE PLAINTIFF DATED 19.6.06. EXT.P2(A): COPY OF MEDICAL CERTIFICATE DATED 21.3.2006. EXT.P3: COPY OF ORDER DISMISSED BY THE TRIAL COURT DATED 23.11.2006 IN I.A.NO.541/06 IN O.S.NO.248/03 OF MUNSIFF COURT, PAYYANNUR. EXT.P4: COPY OF ORDER DATED 2.4.2008 IN C.M.A.3/07 DISMISSED BY THE APPELLATE COURT. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.32036 OF 2008 (L) ----------------------------------- Dated this the 25th day of November, 2009 J U D G M E N T Petitioners are the defendants in O.S.No.248 of 2003 on the file of the Munsiff Court, Payyannur. The above suit was one for perpetual prohibitory injunction and the respondents are the plaintiffs. Suit was decreed ex parte. Petitioners moved an application under Order IX Rule 13 of the Code of Civil Procedure to set aside the ex parte decree. That application was objected to by the respondents/plaintiffs. The learned Munsiff dismissed that application vide Ext.P3 order. Appeal preferred by the petitioners against Ext.P3 order was also turned down by the learned Sub Judge, Payyannur vide Ext.P4 judgment. Propriety and correctness of Ext.P4 judgment confirming Ext.P3 order of the learned Munsiff is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. WPC.32036/08 2 2. I heard the counsel on both sides. Suit was decreed ex parte on 14.3.2006. On that date when the case was posted in the list for trial, the counsel appearing for the defendants reported 'no instructions'. An ex parte decree was passed in the suit. One week later, defendants moved an application for setting aside the ex parte decree. That application was filed with an affidavit sworn to by the son of the 1st defendant, who had been previously permitted by the court to give evidence on behalf of the defendants. In the objections raised by the plaintiffs opposing the application, it was contended that son of the 1st defendant, deponent of the affidavit, which was filed in support of the petitions, has no locus standi to state sufficient cause for the absence of the defendants and to prosecute a petition for setting aside the ex parte decree. The case canvassed for the absence of the defendants, that is, illness of the deponent, which was sought to be established by producing medical certificate, was also challenged by the plaintiffs. The objections so canvassed impressed the learned Munsiff to hold that since the affidavit has been sworn by a WPC.32036/08 3 person other than the defendants, he has no locus standi to do so, and the application for setting aside the ex parte decree is not entertainable. The other ground canvassed that the illness of the deponent of the affidavit was found not acceptable for the reason that the medical certificate produced has not been proved by the examining the doctor. On a previous occasion, the suit had been decreed ex parte but that decree was set aside also weighed with the court in concluding that the application moved is not allowable. The order so passed by the learned Munsiff with the reasonings entered, as indicated above, was found convincing to the learned Sub Judge as well which resulted in dismissal of the appeal by Ext.P4 judgment. 3. After having heard the counsel at length and perusing the exhibits produced with the writ petition, more particularly, Ext.P3 order and Ext.P4 judgment, I find that the approach of both the courts in declining the request for setting aside the ex parte decree cannot be approved. If the petition was defective for the reason that the affidavit sworn to in respect of that petition was by an incompetent person, it should have WPC.32036/08 4 been rejected. After taking evidence on such petition at the fag end, disposing it on merit holding that the person who was presented has no locus standi is not proper and correct. Further more, the application for setting aside the ex parte decree has been moved by the counsel for the defendants, who had been authorised to do so under the vakalath and the affidavit is sworn to by the son of the 1st defendant. Even an application filed by a counsel without a supporting affidavit is sufficient to set aside an ex parte decree, provided, the cause shown in that application for the absence of the defendants on the date when the case was posted for hearing deserved consideration and merit. A decree can be passed ex parte on various grounds under circumstances by which, the defendants for one reason or other could not appear on the hearing date of the suit. It is the absence of the defendants on the hearing date that has to be examined in appreciating whether they had sufficient cause or not for the nonappearance before the court. In appreciating that question, previous nonappearance leading to passing of a decree ex parte cannot be given unmerited consideration WPC.32036/08 5 unless there are circumstances indicating that there has been willful negligence or deliberate laches on the part of the defendants for the nonappearance before the court. Similarly, insisting for proving of medical certificate or medical prescription by examining the doctor in an enquiry under Order IX Rule 13 of the CPC has not been approved by this Court. The totality of the facts and circumstances presented in the case has to be looked into to examine whether the defendants had made out sufficient cause for the nonappearance on the hearing date of the suit. I find that Ext.P3 order passed by the learned Munsiff and Ext.P4 judgment passed by the learned Sub Judge are liable to be set aside. At the same time, the injury likely to be caused to the plaintiffs for setting aside an ex parte decree after so many years which had been caused on account of the default of the defendants has to be compensated. So much so, the ex parte decree passed in the suit shall stand set aside subject to the condition that the petitioners shall pay a sum of Rs.5,000/- (Rupees five thousand only) as cost to the respondents within two weeks from the date of this judgment. In default of such WPC.32036/08 6 payment as directed, the writ petition shall stand dismissed. Post for compliance report after two weeks. S.S.SATHEESACHANDRAN JUDGE prp