IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 19TH DECEMBER 2008 / 28TH AGRAHAYANA 1930 FAO.No. 267 of 2008 AGAINST THE ORDER DATED 29/09/2008 IN IA 2444/08 IN OS.29/2003 OF PRL.SUB COURT, KOZHIKODE APPELLANTS/PETITIONERS/DEFENDANTS ----------------------------------------------------- 1. CHERIYA MAYAN, S/O.MUNDOLI KUNHALI, NALLALAM AMSOM DESOM, KOZHIKODE TALUK. 2. MUNDOLI KUNHAMUTTY, S/O.KUNHALI, NALLALAM AMSOM DESOM, KOZHIKODE TALUK. 3. MUNDALI MUHAMMED, S/O.KUNHALI, NALLALAM AMSOM DESOM, KOZHIKODE TALUK. 4. MUNDOLI ABOOBACKER, S/O.KUNHALI, NALLALAM AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT: RESPONDENT/PLAINTIFF ----------------------------------- SATHI AMMA, D/O.LAKSHMI AMMA, 'SREEHARI', NALLALAM AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH ADV. SRI.M.S.NARAYANAN(MEDIATOR) THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 19/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & K.T.SANKARAN, JJ. ------------------------------------------------------------- F.A.O. NO. 267 OF 2008 ------------------------------------------------------------- Dated this the 19th December, 2008 JUDGMENT K.T.Sankaran, J. The defendants in O.S.No.29 of 2003 on the file of the Court of the Subordinate Judge of Kozhikode, whose application under Order IX Rule 13 of the Code of Civil Procedure was dismissed by the court below, have filed this appeal challenging the order of the court below. 2. The suit was filed by the respondent for fixation of boundary and for permanent prohibitory injunction restraining the defendants from entering into the plaint C schedule property. There is also an alternative prayer for recovery of possession of any portion of the plaint schedule property which was found to be in the possession of the defendants. According to the plaintiff, the plaint A schedule property belongs to her. A power of attorney was executed by her in favour of her husband. Using the power of attorney, the plaintiff's husband executed registered assignment deeds in favour of defendants 1 to 4 transferring portions of the F.A.O. NO.267 OF 2008 :: 2 :: plaint A schedule property. Excluding the properties assigned in favour of defendants 1 to 4, the balance extent of 2.27 acres is in the possession of the plaintiff. The property assigned out of plaint A schedule property is shown as plaint B schedule property and the properties in possession of the plaintiff excluding plaint B schedule property is shown as plaint C schedule. The prayer is to fix the boundary of the plaint C schedule property. 3. The defendants filed a written statement and made a counter claim. According to the defendants, the balance extent available in the plaint A schedule property was agreed to be sold to the defendants and they were put in possession of the property. The defendants are in possession of the disputed property since 1980. The contention that the plaintiff is in possession of 2.27 acres was denied. In the counter claim, the defendants prayed for a decree for specific performance of the alleged agreement to sell the plaint C schedule property. Various other contentions were also raised by the defendants. The plaintiff filed a replication statement as well. 4. The suit was listed for trial on 5.7.2008. When the case was taken up on 5.7.2008, the counsel for the defendants prayed for F.A.O. NO.267 OF 2008 :: 3 :: adjournment of the case. The prayer for adjournment was rejected and the defendants were called absent and set exparte. The suit was decreed exparte. The defendants filed I.A.No.2444 of 2008 to set aside the exparte decree. They contended that the Advocate's Clerk omitted to note the date of posting of the case in the list and the defendants were not informed about the posting of the case. The application was opposed by the plaintiff. The court below noticed that the case was posted on several occasions after framing of issues. The defendants failed to pay the court fee payable on the counter claim. The counter claim was rejected under Rule 11(c) of Order VII of the Code of Civil Procedure. It was also noticed that the defendants were not vigilant in prosecuting the case. The fact that the defendants were set exparte on an earlier occasion was also taken note of by the court below. As stated earlier, the court below dismissed the application. 5. When an application under Rule 13 of Order IX is filed within time, normally, the Court would be inclined to allow the application, unless it is shown that the defendants were guilty of contumacious conduct. In the present case, the application was filed within one week of the date on which the exparte decree was F.A.O. NO.267 OF 2008 :: 4 :: passed. Learned counsel for the petitioners/defendants submitted that the court below should have allowed the application at least on terms. Learned counsel appearing for the respondent/plaintiff submitted that the defendants tried to protract the suit for the last more than five years and they do not deserve any discretionary relief. Learned counsel for the respondent/plaintiff has filed a statement before us stating the dates and events in respect of the suit. The dates and events would reveal the following facts: The suit was filed on 17.12.2002. The defendants did not appear on summons and they were set exparte on 13.6.2003. The exparte order was later set aside on 29.1.2004 on terms. On 20.2.2004, the court below directed the defendants to file written statement within thirty days and the case was posted to 27.3.2004. But defendants failed to file the written statement. Later, on application filed by the defendants, the written statement was received as per order dated 26.11.2004. However, the defendants failed to pay the requisite court fee payable on the counter claim. On 8.1.2008, the court below dismissed the counter claim on the ground of non-payment of court fee in spite of granting sufficient opportunity to the defendants to pay the requisite court fee. F.A.O. NO.267 OF 2008 :: 5 :: 6. In 2005, a Commissioner was appointed to inspect the property. The Commissioner was obstructed by the defendants in executing the work. On 3.2.2006, the Advocate Commissioner filed an interim report seeking the assistance of police to execute the work. On 20.2.2006, the court below passed an order granting police protection to the Commissioner. On 27.2.2007, the defendants filed an application to review the order appointing the Commissioner. That application was dismissed. The defendants challenged that order in W.P.(C) No.11315 of 2007. On 30.3.2007, the Writ Petition was dismissed. Since the Commissioner expressed his inability to execute the work, another Commissioner was appointed. On 9.1.2008, the Commissioner filed the report. No objections were filed by the defendants to the Commissioner's report. Thereafter, the suit was posted in the special list on 5.7.2008. 7. Learned counsel for the respondent also submits that the counter claim filed by the defendants having been rejected, practically, there is no defence for the defendants. The title of the plaintiff in respect of plaint C schedule property is not in dispute. The only case of the defendants is that they were put in possession F.A.O. NO.267 OF 2008 :: 6 :: of the plaint C schedule property pursuant to an agreement for sale. The counsel submits that an agreement for sale would not confer any title. The defendants also claim adverse possession. The counsel also submits that the defendants having claimed that they got possession of the property as per the agreement for sale, they are not entitled to claim adverse possession. It is also pointed out that an alternative relief for recovery of possession was sought for by the plaintiff praying that in case it is found that the defendants are in possession of any portion of the property, a decree for recovery of possession may be passed. In the light of the facts mentioned above, the counsel for the respondent submits that the defendants cannot not successfully resist the suit being decreed and that any further trial would be unnecessary. The counsel points out that the only intention of the defendants is to protract the proceedings and to deny the fruits of the decree granted in favour of the plaintiff. 8. There is considerable force in the submission made by the learned counsel for the respondent/plaintiff. Still the decree granted by the court below is an exparte decree. The application for setting aside the exparte decree was filed within time. The order impugned shows that there was a prayer for adjournment of the case on F.A.O. NO.267 OF 2008 :: 7 :: 5.7.2008, which was rejected by the court below. The suit was decreed exparte on the same date. The facts narrated above would reveal that the defendants tried to protract the case. Still we are of the view that a last opportunity should be granted to the defendants to contest the case on the merits. This opportunity is being granted only to ensure that a decision on the merits after hearing the parties be arrived at in the case. Such an opportunity should not be misused by the defendants. The past conduct of the defendants in the matter of proceeding with the case is far from satisfactory. In fact, the defendants are not entitled to get any discretionary relief in their favour. Taking into account all the facts and circumstances, we are inclined to allow the prayer to set aside the exparte decree on stringent terms. 9. Accordingly, the appeal is allowed, the order impugned in the appeal is set aside and I.A.No.2444 of 2008 in O.S.No.29 of 2003 is allowed on condition that the appellants shall pay a sum of Rs.25,000/- (Rupees Twenty five thousand only) as costs to the respondent on or before 5th January, 2009. Payment of costs would be irrespective of the result of the suit. If the appellants/defendants fail to pay the costs within the aforesaid period, the appeal shall be F.A.O. NO.267 OF 2008 :: 8 :: treated as dismissed. It is also made clear that the defendants shall not file any interlocutory application except for unavoidable purposes like impleading the legal representatives, to accept the witness list etc. The trial court shall include the suit in the special list for February, 2009. The suit shall be disposed of by the trial court as expeditiously as possible and at any rate, before 15.3.2009. In view of the serious allegations regarding the dilatory tactics adopted by the appellants and further allegation regarding experimental litigations, we make it clear that any Writ Petition or Revision or any other proceeding filed before the High Court in respect of the suit shall be posted before the Bench which disposed of this appeal. The interlocutory application for stay, namely, I.A.No.4504 of 2008, is dismissed. (KURIAN JOSEPH) Judge (K.T.SANKARAN) Judge ahz/