SHAFEEQ RAZAK, vs P.M. ABDUL LAHIR,
- Court
- Kerala High Court
CNR : KLHC010469962026
2026:KER:84662
“CR”
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. SOUMEN SEN
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
TH
WEDNESDAY, THE 4 DAY OF NOVEMBER 2026/13TH KARTHIKA,1948
FAO NO. 83 OF 2026
AGAINST THE ORDER DATED 12.03.2026 IN RPIA 6/2025
IN OS NO.9 OF 2023 OF ASSISTANT SESSIONS COURT/
SUB COURT/COMMERCIAL COURT, KASARAGOD
APPELLANT:
SHAFEEQ RAZAK,
AGED 47 YEARS
S/O.ABDUL RAZAK, SS MANZIL, TAJ NAGAR, ALAMPADY
P.O. MUTTATHODI, KASARAGOD –, PIN - 671123
BY ADV SRI.ANEESH JAMES
RESPONDENTS:
1 P.M. ABDUL LAHIR,
AGED 67 YEARS, S/O MOHAMMED HASAN, RAZIA VILLA,
PANAPPARAMBIL HOUSE, THYNOTHIL ROAD, ALUVA KARA,
ALUVA P.O, PIN 683101, ALUVA WEST VILLAGE, ALUVA
TALUK, ERNAKULAM DISTRICT, REPRESENTED BY HIS
POWER OF ATTORNEY HOLDER ASEAF P.S, AGED 53
YEARS, S/O P.M. ABDUL SATHAR, PUTHENPARAMBIL
HOUSE, MARIYAPADY, U.C. COLLEGE P.O, KARUMALLOOR
VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT., PIN
- 683102
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2 MOHAMMED HAFEEZ C.S,
AGED 30 YEARS, S/O AHAMED SHAFI C.M (C.M.A.
SHAFI), KUDROLI MANNATH, CHERKALA, CHENGALA P.O,
KASARAGOD, KERALA,, PIN - 671541
BY ADVS.
SRI.DINESH MATHEW J.MURICKEN
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
SHRI.AJAY BEN JOSE
SRI.MANJUNATH MENON
SMT.ANNA LINDA EDEN
SHRI.HARIKRISHNAN S.
SMT.ANAVADYA SANIL KUMAR
SMT.ANJALI KRISHNA
SHRI.ABHINAV P. S.
SRI.N.R.SANGEETHARAJ
SRI.VINOD S. PILLAI
SMT.NAYANA VARGHESE
SHRI.JERRY PETER
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY
HEARD ON 04.11.2026, ALONG WITH FAO.84/2026, 85/2026, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
FAO Nos.83, 84 & 85 of 2026
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. SOUMEN SEN
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
TH
WEDNESDAY, THE 4 DAY OF NOVEMBER 2026/13TH KARTHIKA,1948
FAO NO. 84 OF 2026
AGAINST THE ORDER DATED 12.03.2026 IN RPIA 4/2025
IN OS NO.9 OF 2023 OF ASSISTANT SESSIONS COURT/SUB
COURT/COMMERCIAL COURT, KASARAGOD
APPELLANT:
MOHAMMED HAFEEZ C.S
AGED 30 YEARS
S/O AHAMED SHAFI C.M (C.M.A. SHAFI), KUDROLI
MANNATH, CHERKALA, CHENGALA P.O, KASARAGOD,
KERALA,, PIN - 671541
BY ADVS.
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
SHRI.AJAY BEN JOSE
SRI.MANJUNATH MENON
SMT.ANNA LINDA EDEN
SHRI.HARIKRISHNAN S.
SMT.ANAVADYA SANIL KUMAR
SMT.ANJALI KRISHNA
SHRI.ABHINAV P. S.
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RESPONDENTS:
1 P.M. ABDUL LAHIR,
AGED 65 YEARS, S/O MOHAMMED HASAN, RAZIA VILLA,
PANAPPARAMBIL HOUSE, THYNOTHIL ROAD, ALUVA KARA,
ALUVA P.O, PIN 683101, ERNAKULAM DISTRICT,
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER
ASEAF P.S, AGED 51 YEARS, S/O P.M. ABDUL SATHAR,
PUTHENPARAMBIL HOUSE, MARIYAPADY, U.C. COLLEGE
P.O, ERNAKULAM DISTRICT., PIN - 683102
2 SHAFEEQ RAZAK,
S/O.ABDUL RAZAK, AGED 45 YEARS, SS MANZIL, TAJ
NAGAR, ALAMPADY P.O. MUTTATHODI, KASARAGOD –,
PIN - 671123
BY ADVS.
SRI.DINESH MATHEW J.MURICKEN
SRI.ANEESH JAMES
SRI.N.R.SANGEETHARAJ
SRI.VINOD S. PILLAI
SMT.NAYANA VARGHESE
SHRI.JERRY PETER
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY
HEARD ON 04.11.2026, ALONG WITH FAO.83/2026 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
FAO Nos.83, 84 & 85 of 2026
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. SOUMEN SEN
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
TH
WEDNESDAY, THE 4 DAY OF NOVEMBER 2026/13TH KARTHIKA,1948
FAO NO. 85 OF 2026
AGAINST THE ORDER DATED 12.03.2026 IN IA 1/2025 IN
OS NO.30 OF 2023 OF ASSISTANT SESSIONS COURT/SUB
COURT/COMMERCIAL COURT, KASARAGOD
APPELLANT:
1 M/S. KUDROLI BUILDERS AND INFRASTRUCTURE PVT.LTD
ITS REGISTERED OFFICE AT 2ND FLOOR, KELAMBIKA
TOWER, (GATEWAY), TISK, PONDA, GOA - 403401 &
HAVING ITS CORPORATE OFFICE AT KUDROLI SQUARE,
GROUND FLOOR, NEW BUS STAND, KASARAGOD, KERALA,
PIN 671121, REP.BY ITS MANAGING DIRECTOR, AHAMED
SHAFI C.M (C.M.A.SHAFI), AGED 58 YEARS, S/O
MUHAMMED, KUDROLI MANNATH, CHERKALA, KASARAGOD,
KERALA -, PIN - 671541
2 AHAMED SHAFI.C.M (C.M.A.SHAFI),
AGED 58 YEARS
SO MUHAMMED, KUDROLI MANNATH, CHERKALA,
3.KASARAGOD, KERALA -, PIN - 671541
3 AYSHA SHAFI (AYSHABEEVI),
AGED 50 YEARS
W/O AHAMED SHAFI C.M, KUDROLI MANNATH, CHERKALA,
KASARAGOD, KERALA -, PIN - 671541
4 MOHAMMED HAFEEZ C.S,
AGED 30 YEARS
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SO AHAMED SHAFI.C.M, (C.M.A.SHAFI), KUDROLI
MANNATH, CHERKALA, CHENGALA.P.O, KASARAGOD,
KERALA,, PIN - 671541
BY ADVS.
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
SHRI.AJAY BEN JOSE
SRI.MANJUNATH MENON
SMT.ANNA LINDA EDEN
SHRI.HARIKRISHNAN S.
SMT.ANAVADYA SANIL KUMAR
SMT.ANJALI KRISHNA
SHRI.ABHINAV P. S.
RESPONDENTS:
P.M. ABDUL LAHIR,
AGED 67 YEARS, S/O MOHAMMED HASAN, RAZIA VILLA,
PANAPPARAMBIL HOUSE, THYNOTHIL ROAD, ALUVA KARA,
ALUVA P.O, PIN 683101, ERNAKULAM DISTRICT,
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER
ASEAF P.S, AGED 51 YEARS, S/O P.M. ABDUL SATHAR,
PUTHENPARAMBIL HOUSE, MARIYAPADY, U.C. COLLEGE
P.O, ERNAKULAM DISTRICT., PIN - 683102
BY ADVS.
SRI.DINESH MATHEW J.MURICKEN
SRI.VINOD S. PILLAI
SRI.N.R.SANGEETHARAJ
SMT.NAYANA VARGHESE
SHRI.JERRY PETER
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY
HEARD ON 04.11.2026, ALONG WITH FAO.83/2026 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
FAO Nos.83, 84 & 85 of 2026
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JUDGMENT
th
Dated this the 4 day of November, 2026
Soumen Sen, CJ.
The dispute is with regard to a money transaction
between the father-in-law and the son-in-law in respect of
business.
2. Heard Advocates Sri. Aneesh James and Sri. P.
Martin Jose for the appellants as well as Advocate
st
Sri.Nayana Varghese for the 1 respondent.
3. The father-in-law would submit that it was a
business loan and the son-in-law had failed to repay the
loan amount. There are two suits instituted for the recovery
of an amount of almost 7 Crores. ₹
4. We have read the impugned orders carefully.
Admittedly, after the suit progressed substantially, the
learned counsel for the defendants had declined to cross-
examine the plaintiff/PW1. In fact a memo was filed
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subsequently to show that he has not received instruction
to cross-examine the plaintiff/PW1. Although the learned
counsel for the plaintiff has submitted that the matter was
posted for evidence of the defendants, the same, however, is
disputed by the plaintiff. However, from the impugned
order, it appears that after the evidence of plaintiff/PW1 was
nd
closed, the case was posted for defendants’ evidence on 22
November, 2024. Admittedly, the defendants did not adduce
any evidence on the date fixed, as a result thereof, the
th
matter was posted for hearing on 4 December, 2024 and
thereafter, the judgment was pronounced.
5. The learned counsel for the plaintiff has referred
to the decision of a Division Bench of this Court in Fathima
1
M. K. v. Kunhipathu and Others to demonstrate that in a
situation where the defendants did not adduce any evidence
on the date fixed and the court, after hearing the arguments
of the counsel on both sides, pronounced the judgment, the
1 2018 (3) KHC 402; 2018 (3) KLT 491
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disposal of the suit can only be under Order XVII Rule 3(a)
and not under Order XVII Rule 3(b) of the Code of Civil
Procedure, 1908 (in short, “CPC”), thereby not attracting
Order IX Rule 13 for setting aside of such decree.
6. The defendants/appellants had thereafter filed an
application for recalling and/or setting aside of the ex parte
decree under Order IX Rule 13 of the CPC.
7. The maintainability of such an application is
being resisted in view of the ratio in Fathima M. K. (supra).
8. The learned counsel for the appellants have
referred to the decision of the Hon'ble Supreme Court in
2
Prakash Chander Manchanda v. Janki Manchanda to
contend that in a situation where the defendant failed to
appear before the court and consequently no evidence could
be recorded on behalf of the defendant on the day to which
suit was finally adjourned and the defendant's case was
closed by the court, the court is required to proceed under
2 (1986) 4 SCC 699
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Rule 2 and not under Rule 3 of Order XVII. Accordingly, the
court must proceed to dispose of the matter in any of the
modes provided under Order IX and, therefore, application
made by the defendant under Order IX Rule 13 after
passing of the ex parte decree would be maintainable. The
case of Prakash Chander Manchanda (supra), was
apparently not considered in Fathima M.K. (supra). The
present case is akin to the fact situation in Prakash
Chander Manchanda (supra).
9. Since the parties have argued as to the
maintainability of an application under Order IX Rule 13 of
the CPC, it is necessary to refer to Order XVII Rule 2 and
Order XVII Rule 3 of the CPC. The said provisions are
reproduced below:
“2. Procedure if parties fail to appear on day
fixed
Where, on any day to which the hearing of
the suit is adjourned, the parties or any of them
fail to appear, the court may proceed to dispose
of the suit in one of the modes directed in that
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behalf by Order IX or make such other orders
as it thinks fit.
Explanation: Where the evidence or a
substantial portion of the evidence of any party
has already been recorded and such party fails
to appear on any day to which the hearing of
the suit is adjourned, the court may, in its
discretion proceed with the case as if such party
were present.”
“3. Court may proceed notwithstanding either
party fails to produce evidence, etc.
Where any party to a suit to whom time
has been granted fails to produce his evidence,
or to cause the attendance of his witnesses, or
to perform any other act necessary to the
further progress of the suit, for which time has
been allowed, the court may, notwithstanding
such default,-
(a) if the parties are present, proceed to decide
the suit forthwith; or
(b) if the parties are, or any of them is, absent,
proceed under rule 2.”
10. Order XVII Rule 2 contains a situation where on
any day to which the hearing of the suit is adjourned and
the parties or any of them fail to appear on the adjourned
date, the court may proceed to dispose of the suit in one of
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the modes directed in that behalf by Order IX or make such
other orders as it thinks fit, whereas, Order XVII Rule 3
provides that where any party to a suit who has been
granted time earlier fails to produce evidence or ensure the
production of his witnesses or to perform any other act
necessary to the further progress of the suit, the court may,
if the parties are present, proceed to decide the suit
forthwith or if the parties or any of them are absent, proceed
under Rule 2.
11. In Prakash Chander Manchanda (supra), while
considering the Explanation to Rule 2, as inserted by the
Amendment Act, 1976, the Hon’ble Supreme Court observed
that the Explanation conferred discretion on the Court to
proceed to dispose of the suit in any one of the modes
prescribed by or under Order IX of the CPC. In a situation
arising under Order XVII Rule 3(b), the disposal of the suit
would essentially be under Rule 2, and it would be open to
the aggrieved party to apply under Order IX Rule 13.
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12. The record does not show that, the defendants
did appear on the adjourned date when the hearing was
concluded and the judgment pronounced. Hence, the
decision of the Hon’ble Supreme Court in Prakash Chander
Manchanda (supra) squarely applies to the present
situation. However, the fact remains that the defendants, in
spite of having opportunities to cross-examine the plaintiff’s
witness and also to adduce the evidence independently, had
chosen to stay away from the court and allowed the decree
to be passed in favour of the plaintiff.
13. The merits of the decree is not under challenge.
The question is whether at this stage the Court would
permit the defendants to participate in the proceeding.
14. In view of the fact that the defendants have
already filed the written statement, and have now expressed
their desire to cross-examine PW1 and to participate in the
proceeding diligently, we allow these appeals for the ends of
justice to give a last opportunity to the defendants to
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contest the proceeding upon payment of a consolidated sum
of 1,00,000/- (Rupees One Lakh only) as costs to the ₹
plaintiff within a period of a fortnight from date. In default,
the decree passed by the learned trial court shall become
enforceable. In the event the aforesaid cost is paid, the
defendants shall be entitled to cross-examine PW1 and shall
also be entitled to adduce evidence on the dates to be fixed
by the learned trial Judge. In the event, the defendants fail
to cross-examine PW1 on the date fixed or fail to adduce any
evidence on the date fixed for recording the evidence of the
defendants, the court shall close the proceeding and may
rewrite the judgment on the basis of any fresh evidence if it
had come in the meantime. Otherwise it would be open for
the court simply to reiterate its earlier order and decree. The
learned trial Judge is directed to conclude the proceeding
preferably within a period of 6 months from the date of
compliance of this order by the appellants and shall
not grant any adjournment to the parties unless it is
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unavoidable.
15. Accordingly, these First Appeals from Orders
stand disposed of.
Sd/-
Soumen Sen,
Chief Justice
Sd/-
Syam Kumar V.M.,
Judge
krj/SSK/04/11