IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 262 of 2009()
1. ABDUL SALAM, S/O.BEERAVU
... Petitioner
Vs
1. RAVEENDRANATHA PILLAI
... Respondent
2. ALI, S/O.KUNJU MOHAMMAD
3. HAMSA, S/O.MOHAMMED,
For Petitioner :SRI.J.JULIAN XAVIER
For Respondent :SRI.P.N.RAMAKRISHNAN NAIR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :15/02/2010
O R D E R
THOMAS P. JOSEPH, J.
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R.S.A.No.262 of 2009
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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
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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
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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.
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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.
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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