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1972 Supreme(Ker) 229
Judges : P.SUBRAMONIAN POTI
CHARI VIJAYAN - Appellant
Versus
ACHUTHAN VASU - Respondent
Case No : S. A. No. 1155 of 1972
Decided On : 11/22/1972
Advocates Appeared :
P. N. Sankaranarayan Pillai; D. Peethambaran; For Appellants
Courts owe a duty to weigh the merits of the case even when the defendants do not appear, and the shifting of kudikidappu must be accompanied by an offer of a suitable site belonging to the landlord.
Headnote:
Exparte - Kudikidappu - The court appreciated the facts and pleadings despite the case being undefended. The plaintiff's plea for shifting the kudikidappu was discounted as the offered site did not belong to the landlord. The suit for injunction and damages was rightly dismissed due to lack of supporting averments in the affidavit.
Fact of the Case:
The defendants were exparte, and the courts below dismissed the suit as the plaintiff had no case, despite the unusual course of appreciating the facts and pleadings. The plaintiff sought the shifting of a kudikidappu, offered a site belonging to a party with no locus standi, and prayed for an injunction and damages without supporting averments in the affidavit.
Finding of the Court:
The courts appreciated the facts and pleadings despite the case being undefended. The plea for shifting the kudikidappu was discounted, and the suit for injunction and damages was rightly dismissed.
Issues: Defendants being exparte, shifting of kudikidappu, injunction and damages without supporting averments.
Ratio Decidendi: Courts owe a duty to weigh the merits of the case even when the defendants do not appear. The shifting of kudikidappu must be accompanied by an offer of a suitable site belonging to the landlord. A suit for injunction and damages requires supporting averments in the affidavit.
Final Decision: The appeal was dismissed without issue of notice to the respondents.
1. No reason to interfere. Notwithstanding the fact that defendants were exparte the courts below dismissed the suit finding that even on the pleadings the plaintiff has no case. I must observe that this is rather an unusual course. Normally when the defendant in a suit does not appear and contest the courts decree the suit as a matter of course relying on the affidavit of the plaintiff as evidence in support of his case. The courts below have, on the other hand done the right thing in appreciating the facts and the pleadings in spite of the fact that the case was un-defended.
2. The plaintiffs sought the shifting of a kudikidappu. This has to be accompanied by an offer of a suitable site to which the kudikidappu is to be shifted and that site must belong to the landlord. The 1st plaintiff, the landlord in this case did not offer any site belonging to him but offered a site belonging to the 2nd plaintiff who had no locus standi in the suit. The courts below were therefore right in discountenancing the plea of the plaintiff for shifting the kudikidappu.
3. The plaintiffs also prayed for an injunction restraining the disturbance to the enjoyment of his A schedule property and for damages. The affidavit filed by the plaintiff did not contain any averments in support of this. In these circumstances the suit was rightly dismissed.
4. The attention to the pleadings and evidence in a case by the court even where the defendants do not appear and they are exparte shows a healthy trend. In many cases the defendants may be unable to appear not because they have no cause to defend but because they may be unable to face a litigation primarily for want of funds. The courts owe a duty to weigh the merits of the case even when there is such non-appearance. I am happy to find this has been done in this case.
The appeal is dismissed without issue of notice to the respondents.
Dismissed.
