IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO No. 65 of 2006()
1. JOHN SIMON,
... Petitioner
Vs
1. T.H. MOHAMMED KUNJU,
... Respondent
For Petitioner :SRI.P.HARIDAS
For Respondent : No Appearance
The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice K.T.SANKARAN
Dated :09/02/2007
O R D E R
KURIAN JOSEPH & K.T. SANKARAN, JJ.
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F.A.O. NO. 65 OF 2006
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Dated this the 9th day of February,2007
JUDGMENT
Sankaran, J.
The appellant was set exparte in the suit filed by
the respondent for realisation of money and an exparte
decree was passed on 10.6.2004. On 8.7.2004, the
appellant filed an application to set aside the exparte
decree. But the application was filed under Order IX
Rule 9 of the Code of Civil Procedure instead of Order
IX Rule 13. The court below dismissed the application
mainly on two grounds: (1) Though the application is
filed within the period of limitation, the appellant
has not explained the reason why he did not file the
application before 8.7.2004. (2) The application is
filed quoting a wrong provision of law.
2. Article 123 of the Limitation Act provides a
period of limitation of thirty days to make an
application to set aside a decree passed exparte. The
time begins to run from the date of decree or where
summons or notice was not duly served, when the
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applicant had knowledge of the decree. In the case on
hand, time begins to run from 9.6.2004, the date of
decree. The application was filed within the period of
limitation provided under Article 123 of the Limitation
Act. Rule 13 of Order IX of the Code of Civil
Procedure provides that in any case in which a decree
is passed exparte against a defendant, he may apply to
the court by which the decree was passed for an order
to set it aside. The applicant has to satisfy the
Court that he was prevented by sufficient cause from
appearing when the suit was called on for hearing. If
an application is filed within time, there is no
question of any condonation of delay under Section 5 of
the Limitation Act. The applicant need explain the
delay only if the application is not filed within the
prescribed period of limitation. He is not bound under
law to explain the delay in making the application, if
the application is filed within time. Of course, the
Court can also consider as to why the application was
not filed promptly, depending upon the facts and
circumstances of each case, to arrive at a conclusion
as to whether the case put forward by the applicant
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that he was prevented by sufficient cause from
appearing before Court is true or not. Only for that
purpose, the Court could take into account the fact
that the application was filed not immediately after
the exparte decree was passed but on the last date or
immediately before the expiry of the period of
limitation. An application under Order IX Rule 13
cannot be dismissed on the ground that the applicant
had not explained the delay from the date on which he
recovered from his illness to the date of filing of the
application, if the application under Order IX Rule 13
was filed within the period of limitation prescribed
under Article 123 of the Limitation Act. The view
taken by the court below that the appellant was bound
to explain the delay is, therefore, erroneous, illegal
and unsustainable. In G.P.Srivastava v. R.K.Raizada
and others ((2000) 3 SCC 54), the Supreme Court has
held that the words “was prevented by sufficient cause
from appearing” must be liberally construed to enable
the court to do complete justice between the parties.
It was held: “In a case where the defendant approaches
the court immediately and within the statutory time
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specified, the discretion is normally exercised in his
favour, provided the absence was not malafide or
intentional.”
3. It is well settled that quoting a wrong
provision of law is not a ground for rejecting the
prayer in an application. (See Asher v. Raru (1979 KLT
260); Thankamma v. Vaikom Town Juma Masjid Mahal
Sangham (1987 (2) KLT 780); Shaji Varghese v. Cherian
(1993 (1) KLT 133); New Model Bank Ltd. (in
liquidation) v. P.A.Thomas (1959 KLT 1237) and
Kunhikayyumma and another v. Union of India and others
(AIR 1984 Kerala 184)). The appellant has filed the
application under rule 9 of Order IX of the Code of
Civil Procedure. The appellant was the defendant in
the suit. Evidently, Rule 9 of Order IX does not
apply. Only Rule 13 of Order IX applies. Simply
because a wrong provision of law was quoted, the court
below was not justified in dismissing the application
on that ground.
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4. For the aforesaid reasons, the order passed by
the court below is liable to be set aside. It has come
out in evidence that an exparte decree was passed
against the appellant on an earlier occasion and it was
set aside on his application. Though strictly speaking
it may not be relevant in considering the application
under Order IX Rule 13 on the merits, certainly it
could be a relevant factor in awarding costs. Taking
into account the facts and circumstances of the case,
we are of the view that the appellant should be
directed to pay costs of Rs.1,000/- to the respondent
within a period of one month from today as a condition
for setting aside the exparte decree. If the appellant
fails to pay the costs, the order impugned will remain
in force and the F.A.O will stand dismissed with costs.
The Appeal is allowed as above.
(KURIAN JOSEPH)
Judge
(K.T.SANKARAN)
Judge
ahz/
KURIAN JOSEPH&
K.T.SANKARAN, JJ.
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F.A.O.NO. 65 OF 2006
JUDGMENT
9th February, 2007
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