{"id":27899,"date":"2001-11-22T00:00:00","date_gmt":"2001-11-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/nanu-vs-joseph-on-22-november-2001"},"modified":"2017-04-14T20:04:42","modified_gmt":"2017-04-14T14:34:42","slug":"nanu-vs-joseph-on-22-november-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/nanu-vs-joseph-on-22-november-2001","title":{"rendered":"Nanu vs Joseph on 22 November, 2001"},"content":{"rendered":"<div class=\"docsource_main\">Kerala High Court<\/div>\n<div class=\"doc_title\">Nanu vs Joseph on 22 November, 2001<\/div>\n<div class=\"doc_author\">Author: P Raman<\/div>\n<div class=\"doc_bench\">Bench: P Raman<\/div>\n<\/p>\n<pre><\/pre>\n<p>JUDGMENT<\/p>\n<p> P.R. Raman, J.  <\/p>\n<p>1. Revision petitioners are the plaintiffs. The suit is one for injunction against trespass.<br \/>\nDefendants are brothers and adjacent property owners.\n<\/p>\n<p> 2. The first respondent herein who was the second  defendant in the suit was<br \/>\ndeclared ex parte on 12.7.1995. but other defendants contested the suit. It was<br \/>\nthereafter that on 1.11.1999 defendant Nos. 3 and 4 were called absent and ex parte,<br \/>\nand a decree was passed in terms of the plaint against all the defendants. Subsequently,<br \/>\ndefendants 3 and 4 filed an application to set aside the ex parte decree. The second<br \/>\ndefendant, however, did not file any separate application, though he was made a<br \/>\nrespondent in the said application filed by defendants 3 and 4. The lower court, after<br \/>\nconsidering the matter, eventually, set aside the ex parte decree. Thereupon, the first<br \/>\nrespondent herein, namely, the second defendant in the suit filed I.A. 1800 of 2001<br \/>\nunder Sections 148 and 151 of the Code of Civil Procedure seeking leave of the court to file<br \/>\nwritten statement. The lower court allowed the said application and the written<br \/>\nstatement was received on file. It is against that order that the present revision is filed<br \/>\nby the plaintiffs.\n<\/p>\n<p> 3. It is seen from the judgment that the name of the first defendant was struck<br \/>\noff as per Order in I.A. 949\/1995 dated 7.8.1999. The second defendant being called<br \/>\nabsent, he was set ex parte and since the advocate for defendants 3 and 4 being<br \/>\nabsent and defendants 3 and 4 also being called absent and set ex parte a common<br \/>\njudgment was rendered in O.S. 21 of 1995 and 94 of 1995. But actually 2nd defendant<br \/>\nwas declared ex parte even prior to that as noticed earlier. Though there were four<br \/>\ndefendants in O.S. 21 of 1995 there was only one defendant in O.S. 94 of 1995. As<br \/>\nthe suit was one for permanent injunction restraining the defendants from trespassing<br \/>\ninto the plaint schedule property and from interfering in any manner with the plaintiffs&#8217;<br \/>\npeaceful possession, as per order in I.A. 1345 of 1999 dated 10.9.1999, joint trial of<br \/>\nboth the suits were ordered. As a matter of fact, plaintiffs&#8217; evidence closed and DW1<br \/>\nwas examined and it is for cross examination of DW1 that the case was posted to<br \/>\n1.11.1999 as disclosed in the order passed later in I.A. 1811\/1999 setting aside<br \/>\nthe ex parte decree. Documents were also marked on either side. On 1.11.1999<br \/>\ndefendants 3 and 4 were also set ex parte and a decree was passed.\n<\/p>\n<p> 4. A Copy of the decree was furnished to me by the learned counsel appearing<br \/>\nfor the revision petitioner. The operative portion of the same reads as follows:\n<\/p>\n<p> &#8220;This suit is coming on this day for final hearing before me in the presence of Sri. N.M.<br \/>\nKuttikrishnan and Smt. K.T. Indu, advocates for the plaintiffs and 1st defendant&#8217;s name struck<br \/>\noff, the 2nd defendant being called absent and set ex parte and on Smt. T. Girija advocate for<br \/>\nthe defendants 3 and 4 being, absent, the defendants, 3 and 4 also being called absent, set ex parte<br \/>\nthe court both order and decree:\n<\/p>\n<p> 1) That the defendant and their men be restrained by a permanent injunction from<br \/>\ntrespassing into the plaint schedule property and from interfering in any manner with<br \/>\nplaintiff&#8217;s peaceful possession and enjoyment of the property that:\n<\/p>\n<p> 2) The defendants do pay plaintiffs a sum of Rs. 445\/- being the cost of the suit&#8221;.\n<\/p>\n<p> The above is the decree in O.S. 21 of 1995. Subsequently, interlocutory applications<br \/>\nfor setting aside the decree were filed as I.A. Nos. 1811 of 1999 in O.S. 21 of 1995<br \/>\nand 1813 of 1999 in O.S. 94 of 1995 by K.C. Sebastian and K.C. Ephram as petitioners<br \/>\nand Nanu, P.V. Gopinathan and K.C. Joseph as respondents. In the interlocutory<br \/>\napplication filed in O.s. 94 of 1995, Biju Sebastian is the petitioner and Nanu and<br \/>\nGopinathan are the respondents.\n<\/p>\n<p> 5. In this case, we are concerned only with O.S. 21 of 1995. From the cause title<br \/>\nof the parties contained in the application, it can be seen that K.C. Joseph- the first<br \/>\nrespondent herein and who is the second defendant in the suit O.S. 21 of 1995 was the<br \/>\nthird respondent in that petition. Admittedly, he did not figure as the petitioner in<br \/>\nI.A. 1811 of 1999 referred to above. By a common order, both the interlocutory<br \/>\napplications were disposed of and set aside the ex parte decree. It was stated in that<br \/>\napplication that the third defendant was already examined as DW1 and according to<br \/>\nthe petitioners therein by the time their counsel reached the court, they were declared<br \/>\nex parte recording their absence. It was their case that they came late to the court<br \/>\ndue to the road block on their way and there was no wilful default on their part in not<br \/>\nappearing in court in time and therefore,t he decree passed on 1.11.1999 has to be set<br \/>\naside. the court found that both the petitions were filed on 1.11.1999 itself and DW1<br \/>\nand their counsel were late by 40 minutes due to the road block. In the absence of any<br \/>\ncontrary evidence, the case put forward by the petitioners therein that they came late<br \/>\ndue to road block was accepted by the court and the fact that they have filed the<br \/>\npetition on 1.11.1999 itself was further found to be a supporting fact probalising their<br \/>\ncase and finally, after directing to pay a cost of Rs. 250\/- to the respondents together,<br \/>\nthe petition to set aside the ex parte decree was allowed.\n<\/p>\n<p> 6. It was thereafter that I.A. 1800 of 2001 was filed by the first respondent<br \/>\nherein (second defendant in the suit) wherein both the plaintiffs and defendants 3 and 4<br \/>\nwere shown as respondents. The petition was field seeking leave to receive the<br \/>\nwritten statement of the second defendant. In the impugned order passed thereon,<br \/>\nthe court below found that the second defendant was ex parte in the suit previously.<br \/>\nIt was observed that :\n<\/p>\n<p>  &#8220;The second defendant was ex parte in the suit previously. He has appeared before this<br \/>\ncourt in 1999 itself in the petition to set aside ex parte decree. No proper explanation was given<br \/>\nfor not filing written statement hitherto. The suit is put in the special list for trial today. But I<br \/>\nfeel that the 2nd defendant also to be permitted to contest the case in the interest of justice.&#8221;\n<\/p>\n<p> Considering the delay, the court ordered a cost of Rs. 1,000\/-.\n<\/p>\n<p> 7. The main contention advanced by the counsel for the petitioner is that in the<br \/>\nabsence of any separate application filed by the first respondent herein to set aside the<br \/>\nex parte decree passed as against him, the lower court was not justified in law in<br \/>\nallowing him to file written statement and the order is therefore liable to be set aside.\n<\/p>\n<p> It is his further case that under Order 9 Rule 13 CPC. When an ex parte decree is passed<br \/>\nagainst the defendant he may apply to the court by which the decree was passed, for<br \/>\nsetting aside the same. If he satisfies that he was prevented by any sufficient cause<br \/>\nfrom appearing when the suit was called on for hearing, the court shall make an order<br \/>\nsetting aside the decree as against him upon such terms as to costs, payment into<br \/>\ncourt or otherwise as it thinks fit. Thus, according to him, when the second defendant<br \/>\nand defendants 3 and 4 were all set ex parte and admittedly, when only defendants 3<br \/>\nand 4 had applied invoking Order 9 Rule 13 CPC stating the reason as to why they were<br \/>\nabsent on the day on which the case was posted and the court having set aside<br \/>\nthe ex parte decree in their application, it cannot be said that the decree was set aside<br \/>\nin toto as against all the defendants, but only as against defendant Nos. 3 and 4 who<br \/>\nalone filed the application under Order 9, Rule 13 CPC. On the other hand, learned counsel<br \/>\nfor the first respondent submits that he was one of the respondents in the petition filed<br \/>\nby defendants 3 and 4 seeking to set aside the ex parte decree and the prayer in the<br \/>\napplication filed by them was to set aside the ex parte decree and the court having set<br \/>\naside the ex parte decree without specifying that the same was set aside only as<br \/>\nagainst eh petitioners therein, namely, defendants 3 and 4, it has to be understood that<br \/>\nthe decree stands set aside and therefore there is no decree as against the first<br \/>\nrespondent also. According to him, once the decree is set aside without specifying<br \/>\nthat the same was set aside as against the parties who applied for it, it must be presumed<br \/>\nthat the ex parte decree is set aside as against all.\n<\/p>\n<p> 8. It is an admitted case that the first respondent was set ex parte in 1995 itself.<br \/>\nThereafter, the suit was contested only by defendants 3 and 4 defendant Nos. 3 and 4<br \/>\nwere also set ex parte on 1.11.1999, the name of the first defendant having been<br \/>\nstruck off even earlier (even though in the decree name of second defendant is also<br \/>\nreferred to as having been declared ex parte). The ex parte decree was passed on<br \/>\nthat day, ie., on 1.11.1999. Only defendants 3 and 4 applied under Order 9 Rule 13 for<br \/>\nsetting aside the ex parte order. It was after considering the reason put forth by them<br \/>\nthat the decree was set aside. In other words, the second defendant was absent and<br \/>\nwhat prevented him from not appearing in court was not known to the court. The<br \/>\nsecond defendant did not choose to file any application explaining the circumstances<br \/>\neither. As per Order 9 Rule 13, when an ex parte decree is passed against a defendant that<br \/>\ndefendant is given the right to apply to the court by showing that he was prevented by<br \/>\nsufficient cause from appearing, to get the ex parte decree set aside. Therefore,<br \/>\nwhen there are more than one defendant, there may be sufficient reasons for non<br \/>\nappearance in the case of some but need not be so with all of them. Hence unless<br \/>\neach one of them satisfies the court that he was prevented by any sufficient reason<br \/>\nfrom appearing in court, the fact that any one of them had good cause cannot enure to<br \/>\nthe benefit of others who did not show such good cause which prevented them from<br \/>\nappearing before the court on the fixed day. Therefore, when an application is filed by<br \/>\ndefendants 3 and 4 only and they have put forth the reason before the court for their<br \/>\nabsence on the day on which the ex parte decree was passed, the court having<br \/>\nconsidered that reason and having set aside the ex parte decree passed, it cannot be<br \/>\nunderstood as an order setting aside an ex parte decree against all the defendants.\n<\/p>\n<p> 9. It is true that the first proviso to Order 9 Rule 13 is to the effect that where the<br \/>\ndecree is of such a nature that it cannot be set aside as against such defendant only it<br \/>\nmay be set aside as against all or any of the other defendants also. This proviso is an<br \/>\nexception to the main provision. The main provision obliges the defendant to apply to<br \/>\nthe court where an ex parte decree is passed against him to set aside the same on<br \/>\nsatisfying the court that he was prevented by sufficient cause for the non appearance.<br \/>\nBut as per the proviso, even if any other defendant or defendants had not applied<br \/>\nseparately, if the nature of the decree is such that it cannot be set aside as against<br \/>\nsuch defendant, only then it enables the court to set aside the decree against other<br \/>\ndefendants also who have not applied to the court under Order 9 Rule 13. The proviso being<br \/>\nan exception, the court has to apply its mind, examine the nature of the decree and<br \/>\nthen only it can pass an order setting aside the ex parte decree as against the others<br \/>\nas well, because the court has to see whether the nature of the decree is such that it<br \/>\ncannot be set aside as against such the defendants only who applied for the same.<br \/>\nThere is nothing to indicate in the decree that the court exercised its powers under the<br \/>\nproviso. In the absence of anything to show that the court had exercised the powers<br \/>\nunder the proviso which is an exception to the general rule, it cannot be presumed that<br \/>\nthe decree has been set aside against all the defendants. Further, there is nothing to<br \/>\nindicate that the court has considered as to whether the nature of the decree was such<br \/>\nthat it cannot be set aside against these defendants alone who applied for it.\n<\/p>\n<p> 10. From the above discussion, it can be seen that there is nothing to indicate in<br \/>\nthe order setting aside the ex parte decree that the same was set aside as against all<br \/>\nincluding the first respondent herein. In the absence it can only be presumed that the<br \/>\ndecree is set aside as against defendants 3 and 4 who alone applied under Order 9 Rule 13<br \/>\nCPC by showing sufficient cause as to what prevented them from appearing before<br \/>\nthe court on the appointed day. The being the position, in the absence of an order<br \/>\nsetting aside the ex parte decree passed against the first respondent herein, it was not<br \/>\nlegally possible to permit him to file a written statement or grant him leave for<br \/>\nfiling the same.\n<\/p>\n<p> 11. Defendants 3 and 4 have filed their written statements. The plaintiff&#8217;s evidence<br \/>\nwas over. DW.1, the third defendant was already examined on the side of the<br \/>\ndefendants. It was thereafter that the decree was passed ex parte as against the 3rd<br \/>\nand 4th defendants. On the other hand, the first respondent, namely, the second<br \/>\ndefendant did not even file a written statement in the case. He did not even apply to<br \/>\nset aside the ex parte decree passed against him. There is nothing in the order setting<br \/>\naside the ex parte decree that the court has exercised the power under the first<br \/>\nproviso to Order 9 Rule 13. Hence the decree having been set aside only as against<br \/>\ndefendants  3 and 4, the decree passed as against the first respondent (second defendant)<br \/>\ncannot be presumed to have been set aside by the court below. Technically, therefore,<br \/>\nthe second defendant has to apply before the Court below to set aside the ex parte<br \/>\ndecree passed as against him also. So long as there is a decree passed ex parte<br \/>\nagainst the second defendant, the court cannot permit him to file written statement.\n<\/p>\n<p> 12. In the light of what is stated above, the order impugned is set aside. The<br \/>\nmatter is remitted to the trial court for a fresh consideration in accordance with law.<br \/>\nThe first respondent herein is free to submit an application before the court below for<br \/>\nsetting aside the ex parte decree passed against him. The petitioner herein shall file<br \/>\nhis objection, if any, within a period of ten days of receipt of a copy of such petition<br \/>\nfiled by the first respondent. If he files such an application within a period of two<br \/>\nweeks from the date of receipt of a copy of this order, the same shall be considered<br \/>\nand disposed of by the court below, in accordance with law, along with the application<br \/>\nfor seeking leave to file the written statement, as expeditiously as possible, at any rate,<br \/>\nwithin a period of one month thereafter.\n<\/p>\n<p> 13. The Civil Revision Petition is disposed of as above. In the circumstances, there<br \/>\nwill be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Kerala High Court Nanu vs Joseph on 22 November, 2001 Author: P Raman Bench: P Raman JUDGMENT P.R. Raman, J. 1. Revision petitioners are the plaintiffs. The suit is one for injunction against trespass. Defendants are brothers and adjacent property owners. 2. The first respondent herein who was the second defendant in the suit was [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-27899","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Nanu vs Joseph on 22 November, 2001 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/nanu-vs-joseph-on-22-november-2001\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Nanu vs Joseph on 22 November, 2001 - Free Judgements of Supreme Court &amp; 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