1C . E . George and Lilly George v. Elias Thomas

1 OP(C)No.2495 of 2022 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 11[TH] DAY OF JANUARY 2023 / 21ST POUSHA, ``` ## **`1944`** ``` OP(C) NO. 2495 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENT IN IA NOS 15 AND 1 OF 2021 IN OS 176/2013 OF MUNSIFF COURT, THIRUVALLA ``` ## **`PETITIONER/S:`** ``` 1C . E . GEORGE S/O ELIAS, CHIRATHALACKAL HOUSE,PADINJATTUSSERRY MURI, KAVIYOOR P.O, THIRUVALLA , PIN - 689582 2LILLY GEORGE, W/O.C.E. GEORGE CHIRATHALACKAL HOUSE, PADINJATTUSSERRY MURI, KAVIYOOR P.O, THIRUVALLA- 689582 ``` ``` BY ADVS. T.P.PRADEEP P.K.SATHEES KUMAR R.K.PRASANTH MINIKUMARY M.V. JIJO JOSEPH ``` ## **`RESPONDENT/S:`** ``` ELIAS THOMAS CHIRATHALACKAL HOUSE, KAVIYOOR P.O, PADINJATTUSSERRY MURI, KAVIYOOR P.O, THIRUVALLA- 689582 ``` ``` BY ADV P.K.SANTHAMMA ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 11.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 OP(C)No.2495 of 2022 ## **C.S DIAS,J.** **--------------------------OP(C)No.2495 of 2022** **----------------------------Dated this the 11[th] day of January, 2023.** ## **JUDGMENT** Confronted with Ext P6 common order passed in IA No.15/2021 and IA No.1/2021 in OS No.176/2013 by the Court of the Munsiff, Thiruvalla, the defendants in the suit have filed the original petition. The respondent is the plaintiff. 2. The concise case of the petitioners, relevant for the determination of the original petition, is; (i) The above suit was filed by the respondent for a decree of mandatory injunction against the petitioners to handover vacant possession of plaint item No.2 property and for other consequential reliefs. (ii) The petitioners had entrusted the matter to a lawyer. Unfortunately, the lawyer did not 3 OP(C)No.2495 of 2022 appear in the case. The petitioners were set ex parte. (iii) Subsequently, the petitioners came to learn that they were set ex parte and a decree was passed. (iv) Accordingly, they filed IA Nos.3650/2014 and 3649/2014, to set aside the ex parte decree and to condone the delay of 121 days, respectively. (v) Both the applications were posted on 24.2.2015, but they were dismissed for nonprosecution. (vi) The petitioners filed OP(C)No.2551/2016 before this Court to direct the court below to consider IA No.3827/2015, which was filed to restore the applications to set aside the ex parte decree and condone the delay. (vii) The petitioners bona fide believed that the applications were allowed and the ex parte decree was set aside. Nonetheless, their Counsel 4 OP(C)No.2495 of 2022 did not inform them about the real status of the case. (viii) The petitioners are senior citizens. They did not promptly enquire about the case. (ix) Later, the petitioners entrusted the matter to another lawyer. He filed an application to restore the applications to set aside the ex parte decree and condone the delay. Accordingly, IA No.15/2021 (Ext P3) was filed to restore IA No.3650/2014 and IA No.1/2021 (Ext P4) was filed to condone the delay in filing Ext P3 application. (x) The petitioners approached this Court and filed OP(C)No.477/2021, to direct the court below to consider and dispose of Exts P3 and P4 applications. By Ext P5 judgment, this Court directed the court below to dispose of Exts P3 and P4 applications within a period of three months. (xi) Unfortunately, due to the COVID-19 pandemic restrictions and ill-health of the clerk of 5 OP(C)No.2495 of 2022 the Counsel, Exts P3 and P4 applications were dismissed. (xii) The petitioners then filed RP Nos. 49 and 50 of 2021, to restore Exts P3 and P4 applications. The said applications were allowed and Exts P3 and P4 applications were restored to file. (xiii) Against the non-consideration of Exts P3 and P4 applications, the petitioners again approached this Court and filed OP(C)No.1992/2022. During the pendency of the said original petition, the court below dismissed Exts P3 and P4 by Ext P6 common order. (xiv) Ext P6 common order is patently wrong and unjust. Hence the original petition. 3. The respondent has filed a counter affidavit denying the assertions in the original petition. The respondent has contended that the petitioners have set up a new case in the original petition. The original petition is a classic case which establishes 6 OP(C)No.2495 of 2022 how justice can be delayed. The allegations in the original petition are a well planned script to indefinitely prolong the conclusion of the litigation. The suit was filed as early as in the year 2013 and was decreed in 2014. Even after a lapse of 9 years, the respondent is denied the opportunity to enjoy the fruits of the decree. The sole intention of the petitioners is to somehow protract the execution of the decree. The Trial Court had set aside the ex parte decree on condition that the petitioners pay a cost of Rs.250/-. The petitioners deliberately did not pay the cost. Consequently, IA Nos.3650/2014 and 3649/2014 were dismissed. Then the petitioners filed IA No.1527/2015 to review the order dismissing the applications. The said application was allowed on condition that the petitioners deposit an amount of Rs.1,000/- as cost. The petitioners failed to pay the said cost also. The petitioners then filed IA No.3827/2015, to review the order passed in IA No.1527/2015. The said application was dismissed on 7 OP(C)No.2495 of 2022 24.2.2015. In the meantime, the respondent sought the assistance of the Police for effecting delivery of the property. The petitioners obstructed the delivery. They again approached this Court and Ext R1(d) judgment was passed. Later, they filed IA No.1/2021 with a delay of 2173 days to restore IA No.3650/2014. The above sequence of events clearly demonstrates that the petitioners’ intention is only to somehow stall the execution proceedings. The original petition is devoid of any merits and the same may be dismissed. 4. Heard; Sri.T.P Pradeep, the learned counsel appearing for the petitioners and Smt.P.K Santhamma, the learned counsel appearing for the respondent. 5. The short question is whether there is any error or illegality in Ext P6 common order. 6. On an analysis of the pleadings and materials on record, and the facts narrated above, it is seen that the suit was filed way back on 8.4.2013. The petitioners were set ex parte and the suit was 8 OP(C)No.2495 of 2022 decreed on 30.6.2014. The respondent laid the decree to execution by filing EP No.80/2014 on 14.10.2014. 7. The petitioners then filed IA Nos. 3649 and 3650 of 2014, to condone the delay and to set aside the ex parte decree. By order dated 24.2.2015, the court below allowed IA No.3649/2014, on condition that the petitioners deposit an amount of Rs.250/- as cost. 8. Undisputably, the petitioners failed to pay the cost as ordered by the court below. 9. Later, they filed IA No.1527/2015, to review the order dismissing IA No.3649/2014. The said application was allowed by the court below by directing the petitioners to pay an amount of Rs.1,000/- as cost. The petitioners failed to comply with the said order also. 10. Then, the petitioners filed IA No.3827/2015, to review the order passed in IA 1527/2015. Later, they approached this Court by filing 9 OP(C)No.2495 of 2022 OP(C)No.2551/2016, which was dismissed by this Court by Ext R1(d) judgment dated 4.11.2020. 11. It is after all the above rounds that the petitioners filed IA No.1/2021 to condone the delay of 2173 days in filing IA No.15/2021 to restore IA No.3650/2014. 12. The court below, by the impugned Ext P6 order, dismissed the application holding as follows: xxx xxx xxx xxx “The restoration petition and delay condonation petition are to restore the petition to set aside the ex parte decree and delay condonation petition earlier this petition was dismissed for default when the petitioner failed to take steps against the respondents even if time stipulation was given by Honourable High Court. The case records shows that the petitioner, before filing IA3650/2014 and IA 3649/2014, filed another petition to set aside the ex parte decree which was also dismissed for default. Subsequently, IA 3650/2014 and 3649/2014 were filed and both were also dismissed for default. Then after 7 years the petitioner filed the present petitions stating that their advocate council did not inform the progress of the petitions to them. But when the petitioner was cross examined as PW1,she does not have any idea of the case. According to her, the suit was decreed two years ago and there is no delay in filing petition over the petition filed by involving Order 9 Rule 13 CPC is not at all maintainable. In the result the petitions are dismissed. No order as to costs.” (sic) 10 OP(C)No.2495 of 2022 ## 13. A three Judge Bench of the Hon'ble Supreme Court in _**University of Delhi v. Union of India and others**_ [2019 KHC 7261] has held thus: “20.xxxxxxxxxxxxxxxxxx Even in such case the condonation of long delay should not be automatic since the accrued right or the adverse consequence to the opposite party is also to be kept in perspective. **In that background while considering condonation of delay, the routine explanation would not be enough but it should be in the nature of indicating “sufficient cause” to justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the Courts based on the fact situation.** xxxxxxxxxx”. [emphasis supplied] ## 14. In _**Pundlik Jalam Patil v. Jalgaon Medium Project, [(2008) 17 SCC 448]**_ **,** the ## Hon'ble Supreme Court has observed as follows: “17. …..The evidence on record suggests neglect of its own right for long time in preferring appeals. **The court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The court helps those who are vigilant and 'do not slumber over their rights.”** “29. It needs no restatement at our hands that the object for fixing time limit for litigation is based on public policy fixing a life span for legal remedy for the purpose of general welfare. **They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his** 11 OP(C)No.2495 of 2022 **Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy** .” [emphasis supplied] ## 15. in _**Maniben Shah v.**_ Again _**Devraj Municipal Corporation of Brihan Mumbai**_ [(2012) 5 SCC 157] the Hon'ble Supreme Court has held thus: **“24.** What colour the expression “sufficient cause” would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. **If on the other hand, the explanation given by the application is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay”** . [emphasis supplied] 16. The above position has been reiterated by the Hon'ble Supreme Court in _**Esha Bhattacharjee**_ ## _**v. Managing Committee of Raghunathpur Nafar**_ _**Academy and Others**_ [(2013) 12 SCC 649] by holding that: 21.8 (viii) **There is a distinction between inordinate delay and a delay of short duration of few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one** 12 OP(C)No.2495 of 2022 ## **warrants strict approach whereas the second calls for a liberal delineation.** 21.9 (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. 21.10(x) **If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.”** [emphasis supplied] 17. Therefore, the law is succinctly laid down in the afore-cited precedents that, while considering an application for condonation of delay, a routine explanation is insufficient to indicate sufficient cause to justify the delay, which will depend on the back drop of each issue and will have to be weighed carefully by the Courts based on the fact situation. In the case of inordinate delay a strict approach is warranted because “delay defeats equity”. On a reading of the above narrated facts in the instant case, this Court has no doubt in its mind that there is willful latches and negligence on the part of the petitioners in defending their rights in OS 13 OP(C)No.2495 of 2022 No.176/2013. The right of the respondent has crystallized over the last eight years. The court below has not over-stepped its power or authority in passing the impugned order. I do not find any error in Ext P6 order, warranting interference by this Court under Article 227 of the Constitution of India. The original petition fails and is hence dismissed. sd/- sks/11.1.2023 **C.S.DIAS, JUDGE** 14 OP(C)No.2495 of 2022 ## **`APPENDIX OF OP(C) 2495/2022`** ## `PETITIONER EXHIBITS` ``` Exhibit P1TRUE COPY OF THE PLAINT IN OS NO. 176/2013 ON THE FILES OF MUNSIFF COURT, THIRUVALLA Exhibit P2TRUE COPY OF THE JUDGMENT DATED 30.06.2014 IN OS NO. 176/2013 Exhibit P3TRUE OF THE APPLICATION TO RESTORE THE APPLICATION TO SET ASIDE EXPARTE DECREE FILED BY THE PETITIONER NUMBERED AS I.A NO. 15 /2021 IN I.A 3650/ 2014 IN O.S NO. 176/2013 ON THE FILES OF MUNSIFF COURT, THIRUVALLA Exhibit P4TRUE COPY OF THE PETITION TO CONDONE THE DELAY IN FILING THE APPLICATION TO RESTORE THE APPLICATION FOR SETTING ASIDE THE EXPARTE DECREE AS I.A NO. 1 /2021 IN I.A 3650/ 2014 IN O.S NO.176/2013 ON THE FILES OF MUNSIFF COURT, THIRUVALLA Exhibit P5TRUE COPY OF THE JUDGMENT DATED 05.03.2021 OP© NO. 477/2021 ``` ``` Exhibit P6TRUE COPY OF THE COMMON ORDER DATED 23/11/2022 IN I.A. NO. 15/2021 AND IA NO. 01/2021 IN OS NO. 176/2013 OF THE MUNSIFF'S COURT, THIRUVALLA ``` ``` RESPONDENT EXHIBITS ``` ``` Exhibit R1(b)The true copy of the Release Deed in respect of 8 cents of property ``` ``` PETITIONER EXHIBITS ``` ``` Exhibit P7TRUE COPY OF THE EXECUTION PETITION NAMELY EP NO. 80/2014 IN O.S NO.176/2013 ON THE FILES OF MUNSIFF COURT THIRUVALLA ``` ``` RESPONDENT EXHIBITS ``` ``` Exhibit R1(c)The copy of the Settlement Deed having No. 2624/1996 of Thiruvalla SRO dated 17/08/1996 Exhibit R1(d)The true copy of the Judgment dated 04/11/2020 passed by the Hon`ble High Court of Kerala in OP(C) 2551/2016 Exhibit R1(e)The true copy of the Judgment dated 05/03/2021 passed by the Hon`ble High Court of Kerala in OP(C) 477/2021 Exhibit R1(a)Copy of the Judgment dated 24/11/2022 ``` 15 OP(C)No.2495 of 2022 ``` passed by the Hon`ble High Court of Kerala in OP(C) 1992 of 2022 ```