SHIBU V.K vs SHYJU V.K
- Court
- Kerala High Court
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TH
FRIDAY, THE 6 DAY OF NOVEMBER 2026 / 15TH KARTHIKA, 1948
OP(C) NO. 1945 OF 2024
ORDER DATED 30.09.2021 IN I.A.No.2174/209 IN OS NO.162
OF 2014 OF ADDITIONAL DISTRICT COURT, KOZHIKODE-III
JUDGMENT DATED 21.03.2024 IN CMA No.56 OF 2021 OD
ADDITIONAL DISTRICT COURT-IV, KOZHIKODE.
PETITIONER/APPELLANT/PEETITIONER/9TH RESPONDENT:
SHIBU V.K
AGED 43 YEARS
S/O. CHOYI, VADAKKE KUNNATH MOOTTIL HOUSE,
P.O. CHELANNUR, THAMARASSERY AMSOM AND DESOM,
KOZHIKODE TALUK,
KOZHIKODE, PIN - 673616
BY ADVS.
SHRI.NIRMAL.S
SMT.VEENA HARI
SMT.KEERTHY JOHNSON
SMT.POOJA JOSE
SHRI.ABDUL SAHAD M.H.
SMT.MINTU JOSE
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RESPONDENTS/RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS 1
TO 8 & 10:
1 SHYJU V.K
AGED 47 YEARS
S/O KUMARAN, SREE SAILAM,
P.O. KOTTOOLI,
VENGERI AMSOM AND DESOM,
KOZHIKODE TALUK,
KOZHIKODE,
PIN - 673001
2 KUMARAN V.K
AGED 89 YEARS
SREE SAILAM, P.O. KOTTOOLI,
VENGERI AMSOM AND DESOM,
KOZHIKODE TALUK,
KOZHIKODE,
PIN - 673001
3 MADHAVAN V.K
AGED 69 YEARS
S/O. CHANDU,
MOOTTOLI PARAMBA,
PADINHATTUMURI AMSOM,
MOOTTOLI DESOM,
KOZHIKODE TALUK,
KOZHIKODE,
PIN - 673001
4 SATHI V.K
AGED 78 YEARS
W/O RAMANKUTTI,
THIRUTHINALLALAM,
PADINHATTUMMURI AMSOM,
MOOTTOLI DESOM,
KOZHIKODE TALUK,
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KOZHIKODE,
PIN - 673001
5 SREEJA
AGED 60 YEARS
D/O. RAMANKUTTI,
THIRUTHINALLALAM,
PADINHATTUMMURI AMSON,
MOOTTOLI DESOM, KOZHIKODE TALUK,
KOZHIKODE, PIN - 673001
6 SUCHI
AGED 53 YEARS
D/O RAMANKUTTI, THIRUTHINALLALAM,
PADINHATTUMMURI AMSOM,
MOOTTOLI DESOM, KOZHIKODE TALUK,
KOZHIKODE, PIN - 673001
7 SHEEBA
AGED 43 YEARS
D/O. RAMANKUTTI, THIRUTHINALLALAM,
PADINHATTUMMURI AMSOM, MOOTTOLI DESOM,
KOZHIKODE TALUK, KOZHIKODE,
PIN - 673001
8 BIBEESH V.K
AGED 56 YEARS
S/O RAMANKUTTI, THIRUTHINALLAM,
PADINHATTUMMURI AMSOM, MOOTTOLI DESOM,
KOZHIKODE TALUK, KOZHIKODE,
PIN - 673001
9 VADAKKE KUNNATH VINEETHA
AGED 47 YEARS
D/O GOPALAN, MPPTTPLLI PARAMBIL,
PADINHATTUMMURI AMSOM DESOM,
KOZHIKODE TALUK, KOZHIKODE,
PIN - 673001
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10 P.K. GEETHA
AGED 64 YEARS
W/O CHOYI, VADAKKEKUNNATH HOUSE,
CHELANNUR P.O., KOZHIKODE TALUK,
KOZHIKODE, PIN - 673001
11 SHEESHA
AGED 44 YEARS
D/O CHOYI, VADAKKEKUNNATH HOUSE,
CHELANNUR P.O., KOZHIKODE TALUK,
KOZHIKODE, PIN - 673001
12 SINI,
AGED 43 YEARS
D/O CHOYI, VADAKKEKUNNATH HOUSE,
CHELANNUR P.O., KOZHIKODE TALUK,
KOZHIKODE, PIN - 673001
13 JANAKI
DIED, PIN - 673001
14 YASODHA @ SATHI
AGED 76 YEARS
D/O CHANDU, MALLISSERI HOUSE,
ERANHIPALAM P.O., KOZHIKODE,
PIN - 673001
15 VINOD KUMAR.V.T
AGED 61 YEARS
S/O VASUDEVAN, VELAKKATHRA MKANDI THATTARAKKAL,
KARAPARAMBU P.O.,
KOZHIKODE, PIN - 673001
16 SANTHOSH KUMAR.V.T
AGED 59 YEARS
S/O VASUDEVAN, VELAKKATHRA MKANDI THATTARAKKAL,
KARAPARAMBU P.O., KOZHIKODE,
PIN - 673001
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17 RAGINI,
AGED 62 YEARS
D/O.MOOTHORAN MANATHAL, K.P.VIHAR,
VENGERI P.O., KOZHIKODE,
PIN - 673001
18 PUSHPA
AGED 59 YEARS
D/O MOOTHORAN MANATHAL,
K.P.VIHAR, VENGERI P.O.,
KOZHIKODE, PIN - 673001
19 SHAJI
AGED 53 YEARS
S/O MOOTHORAN MANATHAL,
K.P.VIHAR, VENGERI P.O.,
KOZHIKODE, PIN - 673001
20 NAINA
AGED 50 YEARS
D/O MOOTHORAN MANATHAL,
K.P. VIHAR,
VENGERI P.O., KOZHIKODE,
PIN - 673001
21 GIRIJA
AGED 62 YEARS
D/O LATE JANAKI,
OTTATHENGULLATHIL HOUSE,
ERAMANGALAM, P.O., BALUSSERI,
KOZHIKODE, PIN - 673001
22 SASEENDRAN
AGED 59 YEARS
D/O LATE JANAKI,
OTTATHENGULLATHIL HOUSE,
ERAMANGALAM.P.O.,
BALUSSERI, KOZHIKODE,
PIN - 673001
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23 GAYATHRI
AGED 54 YEARS
D/O LATE JANAKI,
OTTATHENGULLATHIL HOUSE,
ERAMANGALAM P.O., BALUSSERI,
KOZHIKODE, PIN - 673001
24 PRADEEPAN
AGED 51 YEARS
S/O LATE JANAKI,
OTTATHENGULLATHIL HOUSE,
ERAMANGALAM P.O., BALUSSERI,
KOZHIKODE, PIN - 673001
BY ADVS.
SHRI. RAM MOHAN FOR R1
SMT.SWATHY SUDHIR R2 & R3
SRI.K.MOHANAKANNAN FOR R4, R6 & R8
SHRI.ADARSH MOHAN K.
SHRI.P.T.MOHANKUMAR
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 15.10.2026,
THE COURT ON 06.11.2026 DELIVERED THE FOLLOWING:
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“CR”
T.R. RAVI, J.
--------------------------------------------
O.P. (C).No.1945 of 2024
--------------------------------------------
th
Dated this the 6 day of November, 2026
JUDGMENT
The issue raised in this original petition is whether a court,
before which an Advocate reports “no instructions” from his client,
must issue notice to the party who entrusted the said Advocate to
appear before proceeding further with the matter.
th
2. The petitioner is the 9 defendant in a suit for
rd
partition. He is the son of the deceased 3 defendant. The
petitioner and his father filed a joint written statement. According
to him, there was no sitting on 09.07.2019, and the case was re-
posted for evidence to 11.07.2019. On 11.07.2019, the counsel for
the petitioner did not represent the case, and the petitioner’s
evidence was closed. On 17.07.2019, the petitioner filed IA No.
1255 of 2019 to re-open the evidence, stating that his counsel was
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engaged in another court. The petition was allowed on 20.07.2019,
and the case was posted to 24.07.2019 for evidence. On that day,
the petitioner was set ex parte since his counsel reported “no
instructions”. On 31.10.2019, an ex parte decree was also passed
against the petitioner. On 19.11.2019, I.A. No. 2174 of 2019 was
filed, praying to set aside the ex parte decree. According to the
petitioner, he was undergoing treatment for an injury caused by a
fall and could not meet his lawyer, which led to his lawyer reporting
“no instructions” on 24.07.2019. The trial court dismissed the
application for setting aside the ex parte order. An appeal filed
against the order of the trial court was dismissed by the First
Appellate Court. The petitioner has hence filed this original petition.
3. The petitioner has relied on the judgments of the
Hon'ble Supreme Court in Malkiat Singh & Anr. v. Joginder
Singh & Ors. [(1998) (2) SCC 206] , Y.P.Lele v. Maharashtra
State Electricity Distribution Co. Ltd. & Ors. [(2023) SCC
OnLine SC 997] and B. Janakiramaiah Chetty v. A.K.
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Parthasarthi & Ors. [(2003) 5 SCC 641], and the judgments of
two Division Benches of this Court in Jayalakshmi v. Avara [2003
(2) KLT 901] and Deepak v. George Philip & Ors. [2006 (4)
KLT 369] to contend that, where a party is not present before the
Court, there is a duty cast on the Court to issue notice to the parties
in case the counsel reports he has “no instructions”. It is submitted
that in the case on hand, neither has the Court issued any notice to
the petitioner nor does it appear from the order that the Court had
enquired with the counsel as to whether he had informed his client
about his withdrawing the vakalath.
4. In Malkiat Singh (supra), the Hon'ble Supreme
Court held as follows:
“6. There is no denying the fact that the appellants had
engaged a counsel to defend them in the civil suit. The
counsel for the appellants pleaded "no instructions" but the
court did not issue any notice to the appellants, who were
admittedly not present on the date when their counsel
reported no instructions in the court. It is nobody's case that
the counsel informed them after he had reported no
instructions to the court. The appellants only came to know
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about the order dated 18.11.1991 and the ex-parte decree
dated 8.2.1992 when they approached their counsel on
6.6.1992. It was within four days thereafter that the
appellants filed an application under Order 9, Rule 13, C.P.C .
for setting aside the order dated 18.11.1991 and the decree
dated 8.12.1992.
7. The appellants in their application clearly pleaded
that they were neither careless nor negligent and as soon as
they learnt about the ex-parte decree dated 8.2.1992 and
the order dated 18.11.1991, they filed the application to set
aside the order and ex-parte decree. A perusal of the record
also reveals that the appellants were neither careless nor
negligent in defending the suit. They had engaged a counsel
and were following the proceedings. In this fact situation, the
trial court, which had admittedly not issued any notice to the
appellants after their counsel had reported no instructions,
should have, in the interest of justice, allowed that
application and proceeded in the case from the stage when
the counsel reported no instructions. The appellants cannot,
in the facts and circumstances of the case, be said to be at
fault and they should not suffer. In taking this view, we are
fortified by a judgment of this Court in Tahil Ram Issardas
Sadarangani & Ors. Vs. Ramchand Issardas Sadarangani &
Anr. (1993 (Supp.) 3 SCC 256) wherein the bench opined:-
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"It is not disputed in the present case that on
March 15, 1974 when Mr. Adhia, advocate withdrew
from the case, the petitioners were not present in
court. There is nothing on the record to show as to
whether the petitioners had the notice of the
hearing of the case on that day. We are of the
view, when Mr. Adhia withdrew from the case, the
interests of justice required, that a fresh notice for
actual date hearing should have been sent to the
parties. In any case in the facts and circumstances
of this case we feel that the party in person was not
at fault and as such should not be made to suffer."
5. The Court held that, in the interest of justice,
issuance of a notice was required and if that is not done, then the
application for setting aside the ex parte order ought to have been
allowed since the party cannot be said to be at fault and they should
not suffer. In holding so, the Hon'ble Supreme Court relied on a
previous judgment in Tahil Ram Issardas Sadarangani & Ors. V.
Ramchand Issardas Sadarangani & Anr. [(1993) Suppl. 3
SCC 256] . In Y.P.Lele (supra), a more recent decision, the
Hon'ble Supreme Court held that once the counsel withdrew his
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Vakalatnama, in the normal course, the trial court ought to have
issued notice to the defendants to engage another counsel. The
Apex Court held that the trial court committed an error in
proceeding to decide the case ex parte . The Apex Court also held
that after the trial court had later, in its wisdom and discretion,
allowed an application under Order IX Rule 13 of the Code of Civil
Procedure (CPC) , the High Court ought to have refrained from
interfering with that order which advanced the cause of justice, by
affording opportunities to both the parties so that the suit could be
decided on merits. Thus, there is a categorical pronouncement that
failure to issue notice, once a counsel has withdrawn his vakalath, is
an error committed by the trial court and an application under Order
IX Rule 13 CPC ought to be allowed in such cases. In
Janakiramaiah (supra), the Hon'ble Supreme Court considered the
effect of the Explanation to Order XVII Rule 2 CPC and held, that
there is a positive purpose in the legislative expression of the words
“where the evidence or a substantial portion of the evidence of a
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party”, which obviously means that the evidence on record is
sufficient to substantiate the absentee party's stand and for disposal
of the suit and the absentee party is deemed to be present for this
obvious purpose. The submission of the counsel for the petitioner is
that unless a situation as warranted in the Explanation is present,
the court should not have proceeded to dispose of the suit by
setting the petitioner ex parte . In Jayalakshmi (supra), a Division
Bench of this Court followed the decision in Malkiat Singh (supra)
and held that a counsel can report “no instructions” to the Court
when the case comes up for hearing, after he previously informs the
party, and in such cases the party cannot wriggle out of the
situation and contend that notice should be sent. The Court further
held that in a case where the party is not informed about the action
taken by the counsel, then the Court has a duty to send notice. The
Court also observed that the counsel can inform the Court that a
registered notice was sent and produce a copy of the notice. That
was a case in which there was a delay of 335 days in filing the
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petition to set aside the ex parte decree. In the case at hand, the
application was filed on 19.11.2019, within 19 days of the ex parte
decree. A learned Single Judge of this Court had considered the
observations in Jayalakshmi (supra) and had referred a case to a
Division Bench for clarification regarding the procedure or course of
action that a Court should adopt when counsel reports “no
instructions” and whether the Court is invariably bound to issue
fresh notice to the litigants before proceeding with the case further.
The Division Bench considered the reference in the decision reported
in Deepak S. (supra). The Division Bench referred to the decisions
in Malkiat Singh (supra) and the decision in Tahil Ram Issardas
Sadarangani (supra) and held that those were cases where the
Advocate had reported no instructions without informing the client.
The Division Bench answered the reference by stating that n o
mandatory rule or rule of universal application is prescribed in
Jayalakshmi (supra) that whenever counsel reports ‘no
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instructions,’ fresh notice should be issued. In view of the law laid
down in Y.P.Lele (supra), this Court need not go any further.
6. A reading of the above decisions would show that
the requirement primarily is that the party whose counsel has
reported “no instructions” should be put on notice of that fact either
by his counsel or by the court, and it is not proper to proceed
against him ex parte without informing him about the same. The
purpose is apparent; that a decision should be on the merits of the
case, rather than on default, and that too for no fault of the party.
7. The counsel for the respondent submitted that
there was no justification for the petitioner being absent on the day
on which the case had been posted for evidence. It is submitted
that so long as he had no proper explanation for his absence, he
cannot take advantage of the fact that his counsel had reported “no
instructions” without informing him, as a reason for setting aside
the ex parte decree. The counsel submitted that even on an earlier
occasion the petitioner was not present, and his evidence had to be
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closed. It is hence submitted that the attempt was to drag the case
without any proper justification. The counsel submitted that in the
affidavit in support of the petition to set aside the ex parte decree,
there is no mention of want of notice from the counsel. The counsel
also submitted that the final decree in the suit has already been
passed and hence nothing survives in the case. The counsel for the
petitioner submitted that the final decrees have already been
appealed against and have not become final. It is submitted that he
had valid contentions in the suit based on a Will executed, and such
contentions could not be agitated before the court on merits, which
has resulted in the preliminary decree. It is pointed out that no
evidence had been let in by either the plaintiffs or the defendants,
as can be seen from the ex parte decree.
8. The arguments put forward by the counsel for the
respondents cannot be sustained. In the judgment in Y.P.Lele
(supra), the Hon'ble Supreme Court found fault with the High Court
for having interfered with an order setting aside the ex parte
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decree, particularly since the order advanced the cause of justice by
affording opportunities to both sides to have a decision on merits.
In the said judgment, the court has specifically held that the
Explanation to Rule 2 of Order XVII CPC could not be invoked in a
case where the defendant had not led any evidence at all, and the
explanation is only to record the presence of that party alone who
had led evidence or substantial evidence and thereafter failed to
appear. In Malkiat Singh (supra), the Hon'ble Supreme Court had
specifically said that in a fact situation where the trial court had
admittedly not issued any notice to the party after their counsel had
reported no instructions, the court should have allowed the
application for setting aside the ex parte and proceeded from the
stage when the counsel had reported “no instructions”. In Tahil
Ram Issardas Sadarangani (supra), the Supreme Court held that
interests of justice required that a fresh notice of actual hearing
should be sent to the parties in such cases. The judgment in
Deepak (supra) cannot be understood as taking a different view
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and has only distinguished the judgment in Jayalakshmi (supra) to
the extent that in every case it cannot be presumed that “no
instructions” were reported by the counsel without informing his
client, and hence it cannot be laid down as a general rule that the
court was obligated to issue notice in all cases.
9. In the case at hand, the ex parte judgment shows that the
petitioner and his father had filed a written statement and had put
forward a Will executed by the predecessor, late Sri.Chandu and
registered as Document No.21 of 1985 with respect to the property.
Since the petitioner was set ex parte and his father was no more,
the issue regarding the Will was never gone into by the trial court.
It is also clear from the judgment that no oral evidence was
adduced by the plaintiff as well as the defendants, and no
documents had been marked by the defendants. In fact, the court
has observed that in the absence of contra evidence, there is
absolutely nothing before the court to substantiate the contentions
put forward in the written statement and in those circumstances, it
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was held that the plaintiff has established that he is a coparcener
and was entitled to get right by birth over the plaint B schedule
property. It would appear from the records that on 24.07.2019 the
counsel for the petitioner and defendants 12 to 15 had reported no
instructions and filed a memo to that effect, and that the evidence
was closed and the case was posted for hearing. There is nothing to
suggest that the court had enquired from the counsel as to whether
the counsel had informed his client about the fact that he was
withdrawing his vakalatnama. It is also admitted that the court had
not issued any notice to the parties. The evidence of the plaintiff
alone had been closed, that too without any oral evidence. Going
by the law laid down in the above-referred judgments, this is a fit
case where the application for setting aside the ex parte decree
ought to have been allowed by the court and a decision arrived at
on merits.
10. In the result, the original petition is allowed.
Ext.P7 judgment in C.M.A.No.56 of 2021 on the file of the Additional
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District Court-IV, Kozhikode and Ext.P5 order in I.A.No.2174 of
2019 in O.S.No.162 of 2104 on the file of the Additional Sub Court-
III Kozhikode are set aside. I.A.No.2174 of 2019 on the file of the
Additional Sub Court-III, Kozhikode is allowed. The ex parte decree
passed on 31.10.2019 is set aside. The trial court is directed to hear
and dispose of the suit afresh.
Sd/-
T.R. RAVI
JUDGE
dsn
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APPENDIX
EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.162/2014 DATED
17/12/2014
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY
RD
DECEASED 3
DEFENDANT AND THE PETITIONER HEREIN DATED
09/02/2015
EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN O.S.162.2014 DATED
31-10-2019
EXHIBIT P4 TRUE COPY OF THE APPLICATION TO SET ASIDE THE EX-
PARTE ORDER DATED 19/11/2019 FILED AS
1.A.2174/2019 IN O.S.162/2014
EXHIBIT P5 TRUE COPY OF THE ORDER IN I.A.2174/2019 DISMISSING
THE APPLICATION TO SET ASIDE THE EX-PARTE DECREE
DATED 30/09/2021
EXHIBIT P6 TRUE COPY OF THE CMA.56/2021 DATED 25/11/2021
EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN CMA.56/2021 DATED 21-
03-2024
EXHIBIT P8 TRUE COPY OF DOCUMENT NO.21/1985, THE REGISTERED
WILL BEQUEATHING THE RIGHT OF CHANDU IN FAVOUR OF
THE DECEASED 3RD DEFENDANT IN SUIT CHOYI V.K.
EXHIBIT P9 TRUE COPY OF DOCUMENT NO.3214/2009 DATED 12-7-2009
EXHIBIT P10 TRUE COPY OF DOCUMENT NO.3364/2012 DATED 22-09-
2012
EXHIBIT P11 TRUE COPY OF THE PRESCRIPTIONS ISSUED BY THE
AYURVEDA DOCTOR WHO TREATED THE PETITIONER AT THE
TIME OF INJURY
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RESPONDENTS' EXTS:
EXHIBIT R-1 (A) TRUE COPY OF THE FINAL DECREE ORDER IN
F.D.I.A. NO. 20/2020 IN O.S. NO. 162 OF
2014 OF THE III ADDITIONAL SUB COURT,
KOZHIKODE
EXHIBIT R-1 (B) TRUE COPY OF THE ORDER IN E.P. NO.
509/2022 IN F.D.I.A. NO. 20/2020 IN O.S.
NO. 162 OF 2014 OF THE SUB COURT,
KOZHIKODE