IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933 FAO.No. 306 of 2011 ---------------------------- (I.A.589/2011 IN OS.597/2008 of PRINCIPAL SUB COURT,NORTH PARAVUR .................... APPELLANTS/PETITIONERS (S): --------------------------------------------- 1. NABEESA,W/O. LATE SRI ABDUL KHADER VALLINJALIL, RESIDING AT NADUVILEPARAMBIL PALAPRASERY, CHENGAMANAD VILLAGE. 2. SUNEER, S/O. LATE SRI ABDUL KHADAR VALLINJALIL, RESIDING AT NADUVILEPARAMBIL PALAPRASERY, CHENGAMANAD VILLAGE. 3. SUBAIR, S/O. LATE SRI ABDUL KHADER VALLINJALIL, RESIDING AT NADUVILEPARAMBIL PALAPRASERY, CHENGAMANAD VILLAGE. 4. SUNITHA, D/O.LATE SRI ABDUL KHADER VALLINJALIL, RESIDING AT NADUVILEPARAMBIL PALAPRASERY, CHENGAMANAD VILLAGE. 5. SULFATH, D/O.LATE SRI ABDUL KHADER VALLINJALIL, RESIDING AT NADUVILEPARAMBIL PALAPRASERY, CHENGAMANAD VILLAGE. 6. SUBEENA, D/O.LATE SRI ABDUL KHADER VALLINJALIL, RESIDING AT NADUVILEPARAMBIL PALAPRASERY, CHENGAMANAD VILLAGE. BY POWER OF ATTORNEY HOLDER AND MOTHER NABEESA. 7. SUDHEER, S/O.LATE SRI ABDUL KHADER VALLINJALIL, RESIDING AT NADUVILEPARAMBIL PALAPRASERY, CHENGAMANAD VILLAGE. BY ADV. SRI.B.RAMACHANDRAN SMT.K.B.REKHA RESPONDENT(S): RESPONDENT: --------------------------------------------- GOPAKUMAR ,S/O.NARAYANAN, EDATHIPARAMBIL HOUSE, PALLISSERY KARA, KALLOOR THEKUMURI VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.C.P.WILSON SMT.ROSE MICHAEL THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 16/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & A. M. SHAFFIQUE, JJ. ------------------------------------------------------- F.A.O.No.306 of 2011 ----------------------------------------- Dated, this the 16th day of November, 2011 J U D G M E N T K.M.Joseph, J. Appellants are the defendants in a suit for return of money. The suit has been decreed exparte. Appellants filed application under Order 9 Rule 13 of the Code of Civil Procedure to set aside the exparte decree. The court below declined the request of the appellants. Hence the appeal. 2. We heard the learned counsel for the appellants and learned counsel for the respondent. We notice from the impugned order that this is the 3rd occasion that exparte decree was passed against the appellants. Para 8 of the impugned order reads as under: “8. In earlier occasions the petitioner had filed applications to set aside the exparte decree passed against him. The earliest decree passed against him was on 23.10.2009. On passing the exparte decree the petitioner filed I.A.4474/09 contending that on the date when the case was listed for trial, his mother fell ill and he could not appear before the court. After hearing that petition the court allowed that I.A. and the exparte decree passed against the petitioner was set aside on 23.10.2009. Again the suit was listed for trial to 4.8.2010. On that date also none of the petitioners appeared before the court and participated in the conduct of the case. The petitioners were set exparte on that date also. To set FAO 306/2011 -2- aside this exparte decree I.A.2716/10 was filed by the petitioner. The ground alleged in this petition was that the non-appearance was due to the illness of the 3rd petitioner. After considering the objection and hearing the parties the court allowed that petition also and exparte decree against the petitioners were set exparte. After this the suit was listed for trial to 12.1.2011. On that day the petitioners did not appear and conduct the case and the suit was decreed exparte. Against this order the petitioner has filed this application. In this petition it is averred that the 3rd petitioner went to Palakkad for settling the labour dispute in the brick manufacturing unit of the 2nd petitioner. The nature of the petitioners can be ascertained from all these petitions. These petitions would go to show that the petitioner has not approached the court honestly and sincerely. There is nothing in evidence to show that the petitioners made any earnest efforts for the conduct of the case. The averments in the petition would go to show that the reason shown is not sufficient for the non-appearance of the petitioners before the court. As observed by the Hon'ble Supreme Court in the above cited decision sufficient cause is one for which the defendant could not be blamed for his absence. In the case at hand the petitioners alone are to be blamed for their non-appearance before the court. In addition to this no convincing evidence is adduced by the petitioner for the participation of the 3rd petitioner in the alleged labour dispute in the brick manufacturing unit of 2nd petitioner. As per sections 101 and 103 of the Evidence Act the burden of proof lies on the person who asserts the affirmative of a fact. It means that the party who claims the existence of the said fact has to prove the same before he is entitled for a judgment in his favour. Section 103 of the Evidence Act provided that the burden FAO 306/2011 -3- of proof as to the particular fact lies on that person who wishes the court to believe in its existence. On this ground also as the petitioner failed to prove the alleged cause hence the petitioner is not entitled for the relief claimed.” Thereafter, the court finds that the agreement was executed on 23.7.2007. An amount of Rs.50 lakhs was given as advance. It is found that appellants have been enjoying the advance amount without paying any interest and undue advantage is received by the appellants. No doubt, the case of the appellants was as follows: The 3rd appellant was conducting the case on behalf of other appellants also. The first appellant who is the mother of the 3rd appellant is an aged and weak lady. The case was listed on 12.1.2011. From that day the case was adjourned to 15.1.2011. An exparte decree was passed on 17.1.2011. There was some labour dispute in the brick manufacturing unit run by the 2nd appellant. The 3rd appellant was engaged in Palakkad from 10.1.2011 to 19.1.2011. The court found that there is no evidence to show that he was engaged in Palakkad in connection with the labour dispute. It is found that admittedly the brick manufacturing unit is run by the 2nd appellant who is the brother of the 3rd appellant. No documents were produced to show the FAO 306/2011 -4- alleged labour dispute, states the court. 3. Learned counsel for the respondent supported the impugned order. 4. No doubt, the learned counsel for the appellants submits that appellants are not even prepared to execute the sale deed and they have valid contentions in the suit and there may be an adjudicated decision. Learned counsel for the respondent, after getting instructions submits that respondent is not inclined to take conveyance from the appellants. We feel that, despite the facts as stated an opportunity must be given to the appellants for an adjudicated decision, but, it cannot be an unconditional order. In the circumstances of this case, we pass the following order: The appeal will stand allowed, the application filed by the appellants will stand allowed and the exparte decree set aside on condition that the appellants will deposit a sum of Rs.15 lakhs (Rupees fifteen lakhs only) before the court below within a period of three weeks from today. It will be open to the respondent to withdraw the same on furnishing security to the satisfaction of the court below. If the amount is deposited as aforesaid, the court below will take up the suit and dispose of the same on or before the closure of the Courts for Summer Vacation-2012. In case the appellants do not deposit the said amount mentioned as FAO 306/2011 -5- aforesaid, the appeal will stand dismissed and the impugned order will stand. (K.M.JOSEPH) JUDGE. (A. M. SHAFFIQUE) JUDGE. MS