Ibrahim Nazer vs Salim

P.V. Asha, J.—Appellant is the petitioner in I.A. No. 9310 of 2008 in OS. 393/01 on the file of the Principal Subordinate Judges Court, Trichur, which was filed for setting aside exparte decree against him. He is the 1st defendant in the suit filed by the 1st respondent for specific performance of an agreement for sale dated 28.11.96 and for cancellation of a sale deed in favour of the deceased 3rd defendant, with an alternative prayer for realization of a sum of Rs. 4 lakhs paid in advance towards the sale consideration and damages to the tune of Rs. 1 lakh. Along with I.A. No. 9310 of 2008, another I.A. 9308 of 2000 was filed for condoning the delay of 386 days in filing the petition for setting aside the exparte decree. This appeal is filed against the orders dated 22.3.2013 rejecting the aforesaid I.As. The court below dismissed the petition on the ground that the reasons stated in the affidavit in support of the petition were unbelievable and contrary to common course of human conduct.

From paragraph 3 of the impugned order the court below has stated that the case of the appellant in support of the I.A., was that the 1st respondent herein had approached him in the first week of September, saying that the matter can be settled in case he pays a sum of Rs. 1 lakh by the end of September, 2008; believing his words, he did not proceed with the case further and did not contact his counsel; the suit was listed for trial on 12-9-2007; he was set ex-parte; and the suit was decreed allowing the 1st respondent to realize a sum of Rs. 4 lakhs along with interest @ 12% per annum from the date of agreement; Thereafter when he approached the 1st respondent in the first week of September, 2008 for payment of the 1 lakh Rupees, the 1st respondent sought a week''s time to contact his counsel for preparing the papers for compromise and thereafter he was evading him till 13.12.08 when he demanded a sum of Rs. 2 lakhs; till 13.12.08 he was under the belief that the 1st respondent would settle the matter as per the compromise and that it was only on 13.12.08, when the refusal of the 1st respondent to settle the dispute as agreed, came to his knowledge that he could file an application for setting aside the exparte decree. Therefore he requested to condone the delay saying that the delay was not willful.

The 1st respondent filed a counter affidavit in the I.A., saying that there was no bona fides in the application and the appellant only wanted to protract the matter on one or other reason. He denied the allegation as to any attempt for compromise and stated that there was absolutely no reason for condoning the delay.

The appellant herein got himself examined as PW 1 and deposed in terms of the contents in his affidavit.

After considering the matter, the court below repelled the contention of the appellant stating that it was quite unbelievable, improbable and contrary to the nature of human conduct that a compromise between the parties were entered into and therefore the appellant abstained from the proceedings, without reporting the matter to the advocate and without filing the settlement before the court. It was observed that the parties had been fighting the suit for long and therefore it was quite improbable that the appellant believed the words of the 1st respondent who is the adversary. Seeing that the appellant chose to file the petition for setting aside exparte only after a period of 386 days, even after coming to know about the exparte decree, which was passed on merits, the court below found that there was no sufficient or satisfactory reason for not filing the application within the period of limitation.

We heard Sri P.B. Krishnan, the learned Counsel appearing for the appellant and Smt. Sikki. S., the learned Counsel appearing for the respondent.

The counsel for the appellant argued that the court below adopted a hyper technical approach in arriving at a finding that conduct of the appellant was opposed to normal human conduct and in disbelieving the case of the appellant as to the settlement, without giving any credence to his uncontroverted testimony even when the respondent did not adduce any evidence. It was pointed out that the defendant 1 and 2 had already filed a written statement in the case denying the execution of agreement for sale and their contention that the agreement was executed furnishing security for the amount borrowed by them from the 1st respondent, towards which a substantial amount was already paid. It was further pointed out that the court below decreed the suit allowing realization of a sum of Rs. 4 lakhs from the appellant along with interest @ 12% from the date of agreement- 28.11.96 despite the fact that there was no prayer for interest. It was therefore argued that such a relief could not have been granted by the trial court.

Smt. Sikky. S the learned counsel for the 1st respondent vehemently opposed the relief sought in the appeal. She pointed out that the agreement was executed in 1996 and the appellant got the time for execution of sale extended till 2001, the suit was filed in 2001 and it was listed for trial in 2007 and was decreed on 23.10.2007. The appellant deliberately kept themselves away from the proceedings, under the guise of non-existent compromise, only to see that the matter was protracted. She pointed out that it was only when the execution petition was filed that the appellant chose to file the petition for setting aside exparte decree that too stating factually incorrect reasons. She contended that after filing the petition the appellant did not take any action to prosecute the same and got the matter protracted till the year 2013. It was contended that there was absolutely no reason for setting aside exparte; the reasons stated for condoning the delay were insufficient and lacked bonafides and that the court below had rightly rejected the petitions. She stoutly opposed the appeal arguing that the overall conduct of the appellant right from the beginning should disable him from grant of any relief and he does not deserve any consideration.

Despite the stiff opposition from the 1st respondent, we find that the decree has been passed without an effective adjudication on merits. It is seen that the appellant had already filed a written statement in the matter raising serious contentions and disputing the claims raised in the plaint. It is true that defendants 1 and 2 were set exparte and the decree was passed on 23.10.07. However the appellant did not get an opportunity to adduce evidence and to get the adjudication of the suit on merits. Moreover the suit is seen decreed granting a decree for realization of a sum of Rs. 4 lakhs along with interest @12% per annum from the date of agreement, even though there was no prayer for interest in the plaint. In the above circumstances we find that in the interests of all parties it is only just and proper to give an opportunity to the appellant to have an adjudication of the issue involved on merits. Therefore, we set aside the impugned orders on condition that the appellant shall pay a sum of Rs. 10,000/- (Rupees Ten thousand only) to the 1st respondent within a period of one month from today. On such payment court below shall expedite the matter and dispose of the suit afresh.

The appeal is disposed of accordingly. No costs.