The court established that 'sufficient cause' for non-appearance must be evaluated at the specific hearing where absence led to an ex parte decree, excluding prior conduct.

JUDGMENT

Anil K. Narendran, J.

The appellant is the defendant in O.S.No.232 of 2017 on the file of the Additional Sub Court-I, Ernakulam, a suit filed by the respondent herein-plaintiff for recovery of an amount of Rs.62,00,000/-. In the suit, the defendant was set ex parte on 10.12.2019 and an ex parte decree was also passed on 30.01.2020. Seeking an order to set aside the ex parte decree, the defendant filed I.A.No.1 of 2020, an application under Order IX Rule 13 of the Code of Civil Procedure, 1908. That application ended in dismissal by the order dated 22.02.2021, which is under challenge in this appeal filed invoking the provisions under Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908.

2. On 06.12.2021, when this appeal came up for admission, this Court admitted the matter on file and issued urgent notice by speed post to the respondent, returnable within three weeks.

3. Heard the learned counsel for the appellant-defendant and also the learned counsel for the respondent-plaintiff.

4. The learned counsel for the appellant would contend that when the application, i.e., I.A.No.1 of 2020 filed by the appellant to set aside the ex parte decree dated 30.01.2020 in O.S.No.232 of 2017, invoking the provisions under Order IX, Rule 13 of the Code of Civil Procedure, 1908, was one filed within the period of limitation, the Court below ought to have allowed that interlocutory application.

5. On the other hand, the learned counsel for the respondent-plaintiff would point out the conduct of the appellant- defendant during the trial, as stated in paragraph 6 of the impugned order. Therefore, the court below cannot be found fault with in rejecting the application to set aside the ex parte decree, which was one filed within the period of limitation.

6. The reasoning of the court below in paragraph 6 of the order, reads thus;

“6. Point No.1:- Having heard both sides, I have verified the proceedings paper to get a clear picture as to the merits of the contentions advanced by both sides. On 15.03.2019, this court directed the defendant to appear on 03.04.2019 to give his specimen signature. On 03.04.2019 the defendant remained absent and his counsel sought time for appearance to give the specimen signature and thumb impression. As such the case was posted on 20.06.2019. Thereafter, for 3 postings successively, there was no sitting of the court. On 29.07.2019, the court directed the defendant to appear on 19.08.2019 to give the specimen signature. On 19.08.2019, the defendant again remained absent and as such the case was posted 24.08.2019. On 24.08.2019 there was no sitting and the case was adjourned to 18.09.2019 by notification. On 18.09.2019, since the defendant was absent the case was posted 26.10.2019 with the same direction. On 26.10.2019 also the defendant remained absent and there was no representation for him. On that date, the court gave a specific direction to appear on 18.11.2019 showing that in the event of failure, he will be set ex parte. On 18.11.2019, there was no sitting and the case was adjourned by notification to 10.12.2019. On 10.12.2019 as the defendant remained absent and there was no representation, he was set ex parte. Then the case was posted to 28.01.2020 for payment of the balance court fee. On 28.01.2020 the case was adjourned to 29.01.2020 for ex parte evidence. On 29.01.2020 the evidence was recorded and on 30.01.2020 the suit was decreed. From the above, it can be seen that the defendant/petitioner has conveniently suppressed the failure on his part to appear before the court to give his specimen signature and thumb impression on various posting dates prior to the date on which he was set ex parte. He who disobeyed the directions of the court and willfully evaded the opportunities given cannot conveniently take shelter under an alleged mistake committed by a lawyer in noting the posting dates. Absolutely no valid explanation is offered by him for his previous absence. In fact, his absence on the date on