IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931 RSA.No. 262 of 2009() --------------------- AS.356/2006 of DISTRICT COURT, ERNAKULAM OS.645/1997 of MUNSIFF COURT, NORTH PARAVUR .................... APPELLANT/2ND RESPONDENT/ADDITIONAL 3RD RESPONDENT: ------------------------------ ABDUL SALAM, S/O.BEERAVU NALUMURICKAL, KOTTAPPURAM KARAYIL, ALANGAD VILLAGE, PARAVUR TALUK. BY ADV. SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN SRI.ROY JOSEPH SMT.M.S.SOUJATH RESPONDENT(S)/APPELLANTS/PLAINTIFF & DEFENDANTS 1 AND 2: --------------- 1. RAVEENDRANATHA PILLAI S/O.LATE KUNJAN PILLAI, KUNNATHU VEETTIL, THIRUVALOOR KARAYIL, ALANGAD VILLAGE, ALUVA TALUK. 2. ALI, S/O.KUNJU MOHAMMAD VIRUTHIPARAMBIL, ULIYAMANOOR KARAYIL KADUNGALLUR VILLAGE, ALUVA TALUK. 3. HAMSA, S/O.MOHAMMED, THOTTUUNGAPARAMBIL, KOTTAPURAM KARAYIL, ANANGAD VILLAGE. ADV. SRI.P.N.RAMAKRISHNAN NAIR FOR R1 SRI.P.VISWANATHAN FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.262 of 2009 -------------------------------------- Dated this the 15th day of February, 2010. JUDGMENT This Second Appeal (which was not admitted by me) arises from judgment and decree of learned District Judge, Ernakulam in A.S.No.356 of 2006 confirming judgment and decree of learned Munsiff, North Paravur in O.S.No.645 of 1997 granting judgment and decree in favour of respondent No.1 for realisation of Rs.49,725/- with interest as stated in the decree and charging on the suit property. According to respondent No.1 he had entered into an agreement for purchase of the suit property with respondent Nos.2 and 3 on 4.12.1996 for a sum of Rs.50,000/- and paid Rs.45,000/- by way of advance but respondent Nos.2 and 3 failed to perform their part of agreement and execute the assignment deed. Hence the suit for specific performance. Respondent Nos.2 and 3 contended that there was no such agreement for sale, nor was any advance received from respondent No.1 as claimed by him. It is their contention that even before 4.12.1996 (the date of alleged agreement for sale) they had transferred the property to the appellant. In the light of that contention appellant was impleaded as additional defendant No.3 in the suit. He was set ex parte. Trial court passed a decree for refund of advance money with interest as above stated and granting charge over the suit property. Respondent Nos.2 and 3 filed A.S.No.356 of 2006 challenging judgment and decree of the trial court. Appellant was impleaded as respondent No.2 in the appeal. Appellant was RSA No.262/2009 2 absent in that appeal. Appeal was dismissed confirming judgment and decree of trial court. Appellant/additional defendant No.3 is challenging judgment and decree of the first appellate court raising by way of substantial question of law whether courts below are justified in creating charge over the suit property purchased by him even before the alleged agreement for sale for the amount due from respondent No.1. 2. Respondent No.1 has appeared through counsel. Respondent No.3 was served by notice before admission. Notice to respondent No.2 has been returned unclaimed and service of notice on respondent No.2 is declared complete as per order on I.A.No.270 of 2010. It is contended by learned counsel for respondent No.1 that this being an appeal against judgment and decree of the first appellate court, this Court can only consider judgment and decree on its merit and none of the contentions which the appellant could urge, had he filed an application to set aside the ex parte judgment and decree could be raised in this appeal. It is the contention of learned counsel that no substantial question of law is involved on the facts and evidence in this case since there is absolutely no evidence to show that appellant purchased the suit property from respondent Nos.2 and 3 prior to Ext.A1, agreement dated 4.12.1996. Learned counsel for appellant contended that neither in the trial court nor in the first appellate court there was any service of summons/notice on the appellant who was working abroad during the relevant time. It is also the submission of learned counsel for RSA No.262/2009 3 appellant that in the trial court there was only a paper publication as against the appellant in a vernacular daily at a time when he was working abroad and that cannot amount to due service of summons on the appellant. According to the learned counsel the decree to the extent it concerned the appellant in that it created a charge over the suit property which he purchased prior to Ext.A1 dated 4.12.1996, in so far as it is passed without summons/notice to the appellant is non est in the eye of law. Learned counsel has placed reliance on the decision in Kewal Ram v. Smt. Ram Lubhai and others (AIR 1987 SC 1304). 3. It is settled position of law that a defendant who is ex parte in the proceedings has remedy by way of either filing an application to set aside the ex parte judgment and decree on showing sufficient cause or challenge the judgment and decree in an appeal. But when it is an appeal against the ex parte decree, this Court has held in Bava alias Asees (1995 (2) KLJ 706) and Abdul Azeez v. Shareefa Beevi (1997 (1) KLT 8) that none of the grounds which the ex parte defendant could urge in an application under Order 9 Rule 13 of the Code of Civil Procedure (for short, “the Code”) could be urged in the appeal and that appellate court is confined to the correctness of the judgment and decree on merit. RSA No.262/2009 4 4. When this position was pointed out to the learned counsel for appellant he has requested permission to withdraw the appeal without prejudice to his right to file appropriate application to set aside the “ex parte judgment and decree” before the appropriate forum. Learned counsel asserted that appellant did not get any summons/notice from the trial or first appellate court and even the paper publication was not sufficient notice to the appellant. It is also requested by learned counsel that since the application under Order 9 Rule 13 of the Code is now barred by limitation this Court may direct the court before which such application is being filed to condone the delay in filing the application. That request is objected by learned counsel for respondent No.1. According to the learned counsel it is for the court concerned which considers the application under Order 9 Rule 13 of the Code to consider whether delay was caused by sufficient cause and the discretionary jurisdiction has to be exercised in favour of the applicant. There is merit in that objection. I do not consider it legal and proper to issue any such direction to the court before which the application is preferred that being a matter which the court concerned has to consider in exercise of its discretionary jurisdiction. I make it clear that it will be open to the appellant to bring before the court concerned all relevant circumstances including filing of this Second Appeal while seeking condonation/exclusion of delay and in case any such application is filed, that court will consider the application on its merit and pass appropriate decision. RSA No.262/2009 5 In the circumstances stated above, I am persuaded to grant permission to the appellant to withdraw the appeal. Accordingly appeal is dismissed as withdrawn without prejudice to the right if any of the appellant to prefer appropriate application before appropriate court to set aside what the appellant called, “ex parte judgment and decree” against him. I.A.No.555 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks