Aabid v. Rajeena (Mat.Appeal No. 901 of 2022)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 23[RD] DAY OF MARCH 2023 / 2ND CHAITHRA, 1945 MAT.APPEAL NO. 901 OF 2022** **AGAINST THE ORDER DATED 13.07.2017 IN O.P.NO.1946 OF 2015 ON THE FILE OF THE FAMILY COURT,THRISSUR APPELLANT:** **AABID AGED 30 YEARS, S/O MULLAKKOYA THANGAL, KIZHAKKEPURATH HOUSE, PANGARAPILLY VILLAGE, TALPPILLY TALUK, KALIYA ROAD, P.O, CHELAKKARA THRISSUR - 680 586.** **BY ADVS.** **K.R.ARUN KRISHNAN DEEPA K.RADHAKRISHNAN JISSMON A KURIAKOSE SANAL C.S** **RESPONDENT:** **RAJEENA,** **AGED 26 YEARS, D/O ABOOBAZKER, KULANGARATHARA VEETIL, VAZHAKKODE VALAVU, MULLOORAKKARA VILLAGE, TALPPILLY TALUK, THRISSUR - 680 583. BY ADV D.SREEKUMAR** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 23.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Mat.Appeal No.901 of 2022 ## **ORDER/JUDGMENT** ## P.G. Ajithkumar, J. ## C.M.Appl.No.1 of 2022 This is an application filed under Section 5 of the Limitation Act, 1963 for condonation of delay 1118 days in filing the appeal. This appeal is directed against the judgment and decree of the Family Court, Thrissur in O.P.No.1946 of 2015. 2. The appellant states that although he filed an appeal against O.P.No.761 of 2015, which was disposed of along with O.P.No.1946 of 2015 by the Family Court, he could not file an appeal against the judgment and decree in O.P.No.1946 of 2015 in time. It is his contention that although he engaged a counsel for filing the appeal, he omitted to file an appeal challenging the judgment and decree in O.P.No.1946 of 2015 within time. When the appellant contacted his Advocate, on a subsequent point of time, he came to know that no appeal was filed against the judgment and decree in O.P.No.1946 of 2015. Immediately he engaged 3 Mat.Appeal No.901 of 2022 another counsel and filed the present appeal. The delay was thus occasioned not because of any negligence or lapses on his part, but it was on a bona fide omission. He accordingly seeks to condone the delay of 1188 days. 3. The respondent filed counter affidavit refuting the contentions set forth by the appellant. It is contended that there is absolutely no justification for the delay and the attempt of the appellant is to protract the proceedings. 4. Heard the learned counsel appearing for the appellant and also the learned counsel appearing for the respondent. 5. O.P.Nos.761 of 2015 and 1946 of 2015 were disposed of by a common judgment dated 13.07.2017. As per the decree in O.PNo.761 of 2015 the appellant was directed to return gold ornaments, money and household articles. The appellant has filed Mat.Appeal No.974 of 2018 as early as on 12.10.2018. The appellant, however, did not file appeal challenging the judgment and decree in O.P.No.1946 of 2015 immediately. The said decree directs the appellant to pay past 4 Mat.Appeal No.901 of 2022 and future maintenance. Now, the contention of the appellant is that on account of some omission on the part of his counsel the appeal could not be filed in time. The said contention is quite unbelievable. Both O.P.Nos.761 of 2015 and 1946 of 2015 were disposed of as per a common judgment. If the appellant intended to file an appeal in O.P.No.1946 of 2015, there could not have any omission for the same. It cannot be expected that an Advocate is unaware of the fact that this appeal also should have been filed along with the appeal in O.P.No.761 of 2015 had the appellant intended to challenge that decree also. A self-serving statement of the appellant in the affidavit that it was the fault on the part of his counsel cannot be accepted as sufficient cause for condoning long delay of 1118 days in filing the appeal. ## 6. In **Collector, Land Acquisition v. Katiji [(1987)** **2 SCC 107]** , in the context of Section 5 of the Limitation Act, 1963, the Apex Court held that, the expression ‘sufficient cause’ employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner, 5 Mat.Appeal No.901 of 2022 which subserves the ends of justice, that being the lifepurpose for the existence of the institution of Courts. 7. In **Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649]** the Apex Court while summarising the principles applicable while dealing with an application for condonation of delay held that, the concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. The Apex Court held further that, there is a distinction between inordinate delay and a delay of short duration or 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 warrants strict approach whereas the second calls for a liberal delineation. Para.21 of the judgment reads thus; - “21. From the aforesaid authorities the principles that can broadly be culled out are: - 21.1 There should be a liberal, pragmatic, justiceoriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged 6 Mat.Appeal No.901 of 2022 to remove injustice. 21.2 The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. 21.3 Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. 21.4 No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5 Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6 It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. 21.7 The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8 There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the 7 Mat.Appeal No.901 of 2022 first one warrants strict approach whereas the second calls for a liberal delineation. 21.9 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 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. 21.11 It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. 21.12 The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. 21.13 The State or a public body or an entity representing a collective cause should be given some acceptable latitude.” [underlines supplied] ## 8. In **Rafeek and another v. K. Kamarudeen and** ## **another [2021 (4) KHC 34]** a Division Bench of this Court 8 Mat.Appeal No.901 of 2022 held that, though the expression ‘sufficient cause’ employed in Section 5 of the Limitation Act, 1963 is adequately elastic to enable the courts to apply the law in a meaningful manner, which subserves the ends of justice, as held by the Apex Court in **Katiji [(1987) 2 SCC 107]** , the concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play, as held by the Apex Court in **Esha Bhattacharjee [(2013) 12 SCC 649]** . Inordinate delay, which attracts doctrine of prejudice, warrants strict approach, whereas, a delay of short duration or few days, which may not attract doctrine of prejudice, calls for a liberal delineation. 9. The period of delay occasioned in this case is long and inordinate. The appellant is obliged to explain the delay placing sufficient materials before the court if to condone such a long delay. The reasons stated is too flimsy to be accepted, even by taking the most lenient view. In such circumstances, we are of the view that delay the is not liable to be condoned. This C.M.Application is therefore dismissed. 9 Mat.Appeal No.901 of 2022 ## Mat.Appeal No.901 of 2022 C.M.Appl.No.1 of 2022 is dismissed and the delay is not condoned. So, this appeal is liable only to be dismissed. Hence, this appeal is dismissed. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** dkr