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2022 Supreme(Online)(KER) 16008
HIGH COURT OF KERALA
A. BADHARUDEEN, J
SREEJITH P.V., – Appellant
Versus
THALAYILLATH ABDULLA, – Respondent
OP(C)/465/2022
SURESH KUMAR KODOTH, K.P.ANTONY, BINU, K.JAYESH, MOHANKUMAR, PUSHPARAJAN KODOTH, VANDANA MENON, VIMAL VIJAY
Discretion should not be exercised in favor of parties engaged in dilatory tactics without sufficient justification to prevent abuse of legal process.
Headnote:
Discretion - Execution - Article 227 - The court interpreted the timely objections and conduct of the defendants regarding delays in proceedings, emphasizing that discretion should not support dilatory tactics without sufficient justification.
Fact of the Case:
The defendants, having failed to appear in court on multiple occasions, faced an ex parte decree which they later sought to set aside, citing illness as the reason for their absence. The trial court dismissed their application, perceiving their conduct as dilatory.
Finding of the Court:
The court found the defendants' claims of illness unsubstantiated and deemed their repeated absence a tactic to delay proceedings. The appellate court's leniency was criticized for allowing unfounded appeals based on insufficient evidence.
Issues: Whether the appellate court erred in exercising discretion in favor of the defendants despite their lack of sufficient grounds for their request to set aside the ex parte decree.
Ratio Decidendi: The court held that legal discretion should not favor parties acting with dilatory intent and lack of genuine justification, which undermines the judiciary's efficiency.
Final Decision: The petition to set aside the judgment of the appellate court was allowed, thereby reinstating the trial court's order and dismissing the defendants' request.
JUDGMENT
O.P(C).No.465 of 2022 is one filed under Article 227 of the Constitution of India by the judgment debtors/defendants in O.S.No.54/2018 on the file of the Munsiff Court, Hosdurg. In this petition, the plaintiff/decree holder in the above Suit is the respondent. In this case, the petitioner sought the relief to set aside Ext.P4 order dated 21.02.2022, whereby the Munsiff found that the property is liable to be delivered with liberty to the judgment debtors to produce stay order, if any, in view of pendency of Revision Petition. In fact, no Revision Petition has been pending in this matter.
2. In O.P(C).No.322/2022 filed under Article 227 of the Constitution of India , the plaintiff in the above Suit, the petitioner herein, challenges the common judgment in C.M.A.No.22/2021 and 23/2021 dated 07.01.2022. In this case, the respondents are the defendants in the above Suit.
3. I shall refer the parties in these Original Petitions as Abdulla (plaintiff) and Sreejith.P.V and others (defendants). Abdulla filed Suit as O.S.No.54/2018 for evicting the defendants, who are occupying the building owned by the Abdulla, as tenants. On notice, the defendants appeared before the trial court and proceeded the matter. Thereafter, when the case was listed for trial, the defendants were absent and they were set exparte. Accordingly, exparte decree was passed on 25.09.2019. Thereafter, on the application of the defendants, exparte decree was set aside on 12.12.2019. Subsequently, the case was again listed for trial and it was adjourned several times on the basis of the submission made by Sreejith.P.V and others. Despite having availed many adjournments, the defendants were absent before the court on
22.07.2021 and accordingly, again exparte decree was passed. 4. Later Abdulla filed E.P.No.120/2021 on 06.10.2021 to execute the decree. It was after filing the execution petition, Sreejith.P.V and others filed RPIA.No.44/2021 to set aside the exparte decree dated 22.07.2021 along with I.A.2/2021 for condoning the delay of 75 days.
5. The learned Munsiff considered the rival plea in the I.A and finally dismissed both the applications by order dated 24.11.2021. The learned Munsiff narrated the way in which Sreejith.P.V and others contested the case in para.9 of the order in detail. Since the said paragraph is relevant, I am inclined to extract the same hereunder:
"9. The learned counsel for the respondents was submitting that the petitioners had entered appearance in execution petition on 2510.2021 even then this application is filed only on 05.11.2021. In the counter statement, it is contended that the petitioner's only intention is to drag on the proceedings. The said contention in the counter statement is substantiated by the proceedings of the suit. A perusal of record shows that earlier the suit was listed to 3.9.2019 and on that day, plaintiff was examined and defendant/petitioners herein sought time for cross examination. On their submission, it was adjourned to 05.09.2019. On that day, petitioners herein filed application to adjourn the cross examination and that was allowed and the case was posted to 23.09.2019. On 23.09.2019, defendants remained absent and counsel reported no instruction and the suit was decreed exparte on 25.09.2019. Thereafter on the application of the defendants herein, the exparte decree was set aside on 12.12.2019 and the suit was again listed to 11.03.2020. At that time, it was adjourned to 17.03.2020 and due to Covid lockdown restriction it was removed from the list and relisted and it was again listed to 3.4.2021. This is the second time, defendants remaining absent on the day of the list and filing application to set aside the same. The said fact substantiate the contention of the respondents that the attempt of the petitioners are only to drag on the proceedings. That apart, eventhough there are two defendants in the suit, nothing is mentioned for the absensce of the second defendant eventhough the first petitio
