IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32036 of 2008(L)
1. DEHANADATH PARAMBIL KOTTARATHIL
... Petitioner
2. KUNHIKRISHNAN,
Vs
1. DEHANADATH PARAMBIL KOTTARATHL
... Respondent
2. PANKAJAKSHMI AMMA, AGED 54 YEARS,
For Petitioner :SRI.M.V.AMARESAN
For Respondent :SRI.MAHESH V RAMAKRISHNAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :25/11/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).NO.32036 OF 2008 (L)
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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