ANILAN Vs. SATHI

JUDGEMENT

(1.) The appellants are defendants 2 and 3 in O.S.No.307 of 2011 on the file of the Court of the Munsiff of Kochi. The first respondent is the plaintiff and respondents 2 to 4 are defendants 1, 4 and 5 respectively therein. The relief prayed for in the suit is to pass a decree for partition of the plaint schedule property into six equal shares and allotment of one such share to the plaintiff with future mesne profits. The first respondent/plaintiff had also prayed for a permanent prohibitory injunction restraining defendants 1 to 3 from committing acts of waste or from cutting and removing trees or from assigning or encumbering the plaint schedule property or any part thereof.

(2.) Upon receipt of summons the appellants entered appearance through counsel and filed a written statement dated 24.11.2011. Since defendants 1, 4 and 5 did not enter appearance or file a written statement, they were set exparte. After the appellants filed their written statement, issues were framed on 15.12.2011. The suit thereafter stood posted for trial on 7.6.2013. On that day, the appellants (defendants 2 and 3) did not appear. With the result, they were set exparte. Thereupon, exparte evidence of the plaintiff was recorded, arguments were heard and the suit was adjourned to 13.6.2013 for judgment. On that day, the suit was decreed as prayed for. The appellants thereupon filed I.A.No.1453 of 2013 on 15.6.2013 with a prayer that the exparte decree passed on 13.6.2013 may be set aside. That application was heard and allowed by the trial court by the order passed on 26.5.2013 subject to payment of the sum of Rs 1,000/- as costs on or before 16.2.2014. The suit thereafter again came up for trial on 1.12.2015. The appellants (defendants 2 and 3) were again set exparte and the suit was decreed exparte on 4.12.2015. They thereupon filed I.A.No.3309 of 2015 on 16.12.2015 with a prayer to set aside the exparte decree passed on 4.12.2015 through another counsel after getting the consent of the counsel who was appearing for them earlier. By order passed on 24.11.2016, the court below dismissed the said application. Hence this appeal.

(3.) We heard Sri.Jojo A.V., learned counsel appearing for the appellants, Sri.Anoop V. Nair, learned counsel appearing for the first respondent/plaintiff and Smt.Vanaja Madhavan, learned counsel appearing for the second respondent (first defendant). Though the other respondents have been served, they have not entered appearance through counsel. We have also gone through the pleadings and the materials on record. The case set out by the appellants in the affidavit filed in support of I.A.No.3309 of 2015 is that their lawyer, whom they had initially engaged, did not inform them about the fact that the suit stood listed for trial on 1.12.2015. They had in the affidavit filed in support of the application stated that earlier also this led to the exparte decree which was passed on 13.6.2013. They had in paragraph 4 of the affidavit filed in support of the application stated that on 1.12.2015 they received a letter from their counsel intimating them that he has decided to stop practice and calling upon them to collect the relinquishment letter from his office. They had further averred that upon receipt of the said letter which bears the date 26.11.2015, they approached the counsel on 2.12.2015, that thereupon the appellants along with their former counsel approached another counsel and thereafter, on verification on 4.12.2015 it came to their notice that an exparte decree has been passed against them once again on 4.12.2015. The appellants had also averred that on the very same day they obtained a relinquishment letter from their former counsel as also the case records, that in the relinquishment letter the learned counsel had purposefully noted the date as 1.12.2015 instead of 4.12.2015, that when it was brought to his notice he corrected it as 4.12.2015 which was the date on which the consent letter and the case bundles were entrusted to them. The appellants had further averred that as their former counsel was guilty of professional misconduct they have moved the Bar Council of Kerala and that it was solely on account of the failure of the counsel to inform them in time that the case stood listed for trial on 1.6.2015 that they were set exparte.