Abdul Nazar v. Sidhique and KunjiMma (FAO Nos.153 & 154 of 2023)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON ``` ``` MONDAY, THE 27[TH] DAY OF MAY 2024 / 6TH JYAISHTA, 1946 ``` ``` FAO NO. 153 OF 2023 ``` ``` AGAINST THE ORDER DATED 11.12.2018 IN I.A.NO.1124 OF 2017 ``` ``` IN O.S.NO.1499 OF 2011 OF II ADDITIONAL SUB COURT, THRISSUR APPELLANT/PETITIONER/DEFENDANT: ``` ``` ABDUL NAZAR AGED 54 YEARS S/O. KARUPAM VEETTIL KILLIATH ABOOBUCKER, KARUPAM VEETTIL KILLIATH HOUSE, PAVARATTY AMSOM, PAVARATTY P.O., CHAVAKKAD TALUK, THRISSUR DISTRICT, PIN-680507. PIN - 680673 ``` ``` BY ADVS.A.T.ANILKUMAR V.SHYLAJA ``` ## **`RESPONDENT/RESPONDENT/PLAINTIFF:`** ``` SIDHIQUE, AGED 50 YEARS, S/O MOHAMMED, KALLINGAL HOUSE, AZHIKODE DESOM, AZHIKODE VILLAGE, KODUNGALLOOR TALUK, THRISSUR, PIN - 680673 ``` ``` BY ADV ANIL KUMAR D. ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 27.05.2024, ALONG WITH FAO.154/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 FAO Nos.153 & 154 of 2023 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON ``` ``` MONDAY, THE 27[TH] DAY OF MAY 2024 / 6TH JYAISHTA, 1946 ``` ``` FAO NO. 154 OF 2023 ``` ``` AGAINST THE ORDER DATED 11.12.2018 IN I.A.NO.1123 OF 2017 IN O.S.NO.636 OF 2007 OF II ADDITIONAL SUB COURT, THRISSUR ``` ## **`APPELLANT/PETITIONER/DEFENDANT:`** ``` ABDUL NAZAR AGED 54 YEARS ``` ``` S/O. KARUPAM VEETTIL KILLIYATH ABOOBUCKER, KARUPAM VEETTIL KILLIATH HOUSE, PAVARTTY DESOM, PAVARTTY VILLAGE, PAVARTTY P.O., CHAVAKKAD TALUK, THRISSUR DISTRICT, PIN - 680507 ``` ``` BY ADVS.A.T.ANILKUMAR V.SHYLAJA ``` ## **`RESPONDENTS/RESPONDENTS/PLAINTIFFS:`** ``` 1 SIDHIQUE, AGED 50 YEARS S/O. MOHAMMED, KALLINGAL HOUSE, AZHIKODE VILLAGE, AZHIKODE DESOM, KODUNGALLUR TALUK, THRISSUR, PIN - 680673 ``` ``` 2 KUNJIMMA, AGED 84 YEARS W/O LATE KALLINGAL VEETTIL MUHAMMED, KALLINGAL VEETTIL, AZHIKODE VILLAGE, AZHIKODE DESOM, KODUNGALLUR TALUK, THRISSUR, PIN - 680673 ``` ``` BY ADV ANIL KUMAR D. ``` ## **`THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY`** ``` HEARD ON 27.05.2024, ALONG WITH FAO.153/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 FAO Nos.153 & 154 of 2023 ## **JUDGMENT** Anil K. Narendran, J. These FAOs arise out of the orders passed by the Additional Sub Court-II, Thrissur in the interlocutory applications filed in O.S.Nos.1499 of 2011 and 636 of 2007, which are filed by the respondent in these appeals for recovery of arrears of rent. 2. FAO No.153 of 2023 is an appeal filed by the defendant in O.S.No.1499 of 2011 invoking the provisions under Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908, seeking an order to set aside the order dated 11.12.2018 of the Sub Court in I.A.No.1124 of 2017 in that suit, whereby that application filed invoking the provisions under Order IX Rule 13 of the Code to set aside the ex parte decree stands rejected, for the reasons stated therein. 3. FAO No.154 of 2023 is an appeal filed by the defendant in O.S.No.636 of 2007 invoking the provisions under Order XLIII Rule 1(d) of the Code, seeking an order to set aside the order dated 11.12.2018 of the Sub Court in I.A.No.1123 of 2017 in that suit, whereby that application filed invoking the provisions under Order IX Rule 13 of the Code to set aside the ex parte decree stands rejected, for the reasons stated therein. 4. On 08.12.2023, when these appeals came up for 4 FAO Nos.153 & 154 of 2023 admission, this Court admitted the matters on file and issued notice to the respondent. In I.A.No.1 of 2023 filed in the respective appeals, this Court granted an interim order staying all further proceedings in pursuance of the ex parte decrees, for a period of two months. 5. On receipt of notice, respondent entered appearance and pointed out that since the appeals are not filed within the period of limitation, the appellant ought to have filed applications for condonation of delay. In view of the aforesaid objection raised by the respondent, the appellant filed C.M.Application No.1 of 2024 in the respective appeals. In those applications, the respondent filed counter affidavit, producing therewith Annexure R1(a) copy of the counter affidavit dated 12.07.2019 filed in C.M.Application Nos.21 of 2019 and 22 of 2019 on the file of the District Court, Thrissur, wherein it was pointed out that the District Court have no pecuniary jurisdiction to entertain those appeals. It is thereafter that, by the order dated 30.09.2023 of the Additional District Court-III, Thrissur returned C.M.A.Nos.21 of 2019 and 22 of 2019 for presentation before the proper court. Thereafter, the appellant filed these appeals on 30.11.2023 and 01.12.2023 respectively. 6. Heard the learned counsel for the appellant-defendant 5 FAO Nos.153 & 154 of 2023 and also the learned counsel for the respondent-plaintiff. 7. The learned counsel for the appellant-defendant would contend that the delay of 1337 days and 990 days respectively in filing FAO Nos.153 of 2023 and 154 of 2023 occurred for the reason that the order was challenged before the wrong forum, i.e., Additional District Court-III, Thrissur, instead of filing appeals before this Court. Thereafter, the Additional District Court noticed on 30.09.2023 that the appeals are not maintainable before that court and accordingly, C.M.A.Nos.21 and 22 of 2019 along with the connected appeal, i.e., C.M.A.No.23 of 2019 were returned for presentation before the proper court. From the date of filing of C.M.A.Nos.21 and 22 of 2019, i.e., from 24.01.2019 till 30.09.2023, the appellant was bona fide prosecuting the appeals before the wrong forum and there was no delay in filing those appeals. 8. On the other hand, the learned counsel for the respondent-plaintiff would contend that an objection regarding the pecuniary jurisdiction of the Additional District Court-III, Thrissur for entertaining the appeals filed by the appellantdefendant was pointed out in Annexure R1(a) counter affidavits filed by the respondent, which are dated 12.07.2019. The appellant has not chosen to present the appeal before the proper 6 FAO Nos.153 & 154 of 2023 court, till 30.09.2023, the date on which the Additional District Court-III, Thrissur returned the appeal for presentation before the proper court. The learned counsel, relying on the law laid down in the decision of a Division Bench of the Allahabad High Court in **Jagannath Prasad v. Sant Hardasram Sevashram and others [AIR 1978 All. 250]** , would contend that the conduct on the part of the appellant in not taking any steps to present the appeals before the proper court, despite that mistake being pointed out in the counter affidavit filed by the respondent-plaintiff, as early on 12.07.2019, would amount to patent and gross negligence and as such, the benefit of Section 14 of the Limitation Act, 1963 read with Section 5 cannot be extended to the appellant. 9. The Limitation Act, 1963 was enacted by the Parliament to consolidate and amend the law for the limitation of suits and other proceedings and for purposes connected therewith. Section 5 of the Act deals with extension of prescribed period in certain cases. As per Section 5, any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not 7 FAO Nos.153 & 154 of 2023 preferring the appeal or making the application within such period. As per Explanation to Section 5, the fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this Section. 10. It is well settled that the Law of Limitation is founded on public policy to ensure that the parties to a litigation do not resort to dilatory tactics and seek legal remedy without delay. In an application filed under Section 5 of the Limitation Act, the court has to condone the delay if sufficient cause is shown. Adopting a liberal approach in condoning the delay is one of the guiding principles, but such liberal approach cannot be equated with a licence to approach the court-at-will disregarding the time limit fixed by the relevant statute. The acts of negligence or inaction on the part of a litigant do not constitute sufficient cause for condonation of delay. Therefore, in the matter of condonation of delay, sufficient cause is required to be shown, thereby explaining the sequence of events and the circumstances that led to the delay. 11. Section 14 of the Act deals with exclusion of time of proceeding bona fide in court without jurisdiction. As per sub- 8 FAO Nos.153 & 154 of 2023 section (1) of Section 14, in computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. As per sub-section (2), in computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. As per sub-section (3) of Section 14, notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. 9 FAO Nos.153 & 154 of 2023 ## 12. In **Jagannath Prasad [AIR 1978 All. 250]** , the Division Bench of the Allahabad High Court was dealing with a case in which the appeal was wrongly filed before the District Court, which ought to have been filed before the High Court since the valuation of that appeal was Rs.29,617.10. An appeal with a valuation of Rs.20,000/- or more will have to be filed before the High Court. The Division Bench noticed the observation contained in the judgment of another Division Bench of that court in **Lala Hanuman Das v. Pirthvinath [AIR 1996** **All. 677]** that it is not every negligence that would be condoned. Only that species of negligence may be considered as amounting to sufficient cause which any reasonable person situated in the position of the agent may in all honesty commit. After considering the rival contentions, the Division Bench held that where any mistake with regard to the forum of presenting an appeal has been committed and the court is satisfied on the facts of the case that it was either due to some forgetfulness or oversight or uncertainty as to the law regarding the forum for presentation of appeal, then it may be a fit case for applying the provisions of Section 14 of the Limitation Act. On the contrary, where the law is plain and does not admit of any doubt and the appellant or his agent could not possibly have any illusion as to 10 FAO Nos.153 & 154 of 2023 the appropriate forum for presenting the appeal, it would be a case of palpable negligence and would not be covered by the provisions of Section 14 of the Limitation Act. All that one had to do in the instant case was to have a look at the valuation of the appeal and thereafter the forum was as clear as day light. 13. In the instant case, the appellant or his counsel could not possibly have any illusion as to the appropriate forum for presenting the appeal. All that the appellant and his counsel have to do was to have a look at the valuation of the appeals and thereafter present the same before the appropriate forum, i.e., the High Court. Despite the lack of pecuniary jurisdiction of the Additional District Court-III, Thrissur in entertaining the appeals pointed out in Ext.R1(a) objection dated 12.07.2019 filed by the respondent-plaintiff in C.M.A.Nos.21 and 22 of 2019, the appellant-defendant has not taken any steps till 30.09.2023 to present the appeal before the proper forum. In the affidavit filed in support of C.M.Application No.1 of 2024 in the respective appeals the appellant-defendant has not offered any satisfactory explanation for not taking necessary steps to present the appeal before the proper forum, despite the lack of pecuniary jurisdiction of the Additional District Court-III, Thrissur pointed out in Ext.R1(a) objection dated 12.07.2019 filed by the 11 FAO Nos.153 & 154 of 2023 respondent-plaintiff. We find that this is a case of palpable negligence on the part of the appellant-defendant in filing the appeal before the wrong forum, which would not be covered by the provisions under Section 14 of the Limitation Act. 14. 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, which subserves the ends of justice, that being the life-purpose for the existence of the institution of courts. ## 15. In **Esha Bhattacharjee v. Raghunathpur Nafar** **Academy [(2013) 12 SCC 649]** the Apex Court while summerising 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 12 FAO Nos.153 & 154 of 2023 ## 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 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 13 FAO Nos.153 & 154 of 2023 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. 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.” 16. In **Esha Bhattacharjee** , after summerising the principles applicable while dealing with an application for condonation of delay, the Apex Court added some more guidelines taking note of the present day scenario, that an 14 FAO Nos.153 & 154 of 2023 application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. Para.22 of the judgment reads thus; “22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:— 22.1 An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. 22.2 An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. 22.3 Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. 22.4 The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be 15 FAO Nos.153 & 154 of 2023 curbed, of course, within legal parameters.” 17. In **Rafeek and another v. K. Kamarudeen and another [2021 (4) KHC 34 : (2021) 2 RCR (Rent) 223 : 2021 AIR CC 2752]** a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party 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. An application for condonation of delay should be drafted with careful concern and no court shall deal with such an application in a routine manner. As already noticed hereinbefore at paragraph 13, this is a case of palpable negligence on the part of the appellantdefendant in filing the appeal before the wrong forum, which 16 FAO Nos.153 & 154 of 2023 would not be covered by the provisions under Section 14 of the Limitation Act. None of the reasons stated in the affidavit filed in support of C.M.Application No.1 of 2024 in the respective appeals would offer sufficient cause for the delay of 1337 and 990 days in filing the respective appeals. Consequently, C.M.Application No.1 of 2024 in the respective appeals, i.e., FAO Nos.153 of 2023 and 154 of 2023, are dismissed and consequently, those appeals are also dismissed as barred by limitation. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **HARISANKAR V. MENON, JUDGE** AV/30/5 17 FAO Nos.153 & 154 of 2023 ## **`APPENDIX OF FAO 153/2023`** ``` PETITIONER ANNEXURES ``` ## **`ANNEXURE A`** ``` TRUE COPY OF THE FORENSIC LABORATORY REPORT IN RESPECT OF THE ALLEGED AGREEMENT FOR RENT DATED 24.4.2012. ``` ``` RESPONDENT EXHIBITS ``` ``` EXHIBIT-R1(A) ``` ``` TRUE COPY OF THE COUNTER AFFIDAVIT DATED 12.7.2019 FILED BY RESPONDENT BEFORE THE DISTRICT COURT, THRISSUR IN I.A. NO.404/2019 IN C.M.A. NO.21/2019 ``` 18 FAO Nos.153 & 154 of 2023 ## **`APPENDIX OF FAO 154/2023`** ``` RESPONDENT EXHIBITS ``` ``` EXHIBIT-R1(A) ``` ``` TRUE COPY OF THE OBJECTION DATED 12.7.2019 FILED BY THE 1ST RESPONDENT IN I.A. NO.405/2019 IN C.M.A. NO.22/2019 BEFORE THE DISTRICT COURT, THRISSUR ```