Abdurahiman and Rukhiya v. Sathi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 20[TH] DAY OF JUNE 2023 / 30TH JYAISHTA, 1945 F.A.O.NO. 283 OF 2016** **AGAINST THE ORDER DATED 10.08.2015 IN I.A.NO.2211 OF 2014 IN O.S.NO.325 OF 2010 ON THE FILE OF THE SUB COURT, TIRUR APPELLANTS/PETITIONERS/DEFENDANTS:** **1 ABDURAHIMAN, AGED 51 YEARS, S/O.MUHAMMED,KUNNATH, KULANGARAKKATTIL, PURANGU,PONNANI, MALAPPURAM DISTRICT.** - **2 RUKHIYA AGED 41 YEARS, W/O.ABDURAHIMAN,KUNNATH,** **KULANGARAKKATTIL, PURANGU,PONNANI, MALAPPURAM DISTRICT.** **BY ADV SMT.DEEPA NARAYANAN** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** ## **SATHI** **AGED 46 YEARS, D/O.KUMARAN,KUMARANKULANGARA, POTHANNUR AMSOM,NARIPARAMBU DESOM, PONNANI TALUK – 676 101.** **BY ADV SRI.C.M.MOHAMMED IQUABAL** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 20.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 F.A.O.No.283 of 2016 ## **JUDGMENT** ## P.G. Ajithkumar, J. The defendants in O.S.No.325 of 2010 on the file of the Sub Court, Tirur are the appellants. The suit was decreed exparte on 02.07.2013. The appellants filed I.A.No.2211 of 2014 seeking to set aside the said decree, after condoning delay of 482 days. The Sub Court dismissed that application as per the order dated 10.08.2015. The appellant has filed this appeal under Section 104 read with Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908 challenging the said order. 2. Delay of 398 days in filing this appeal was condoned as per the order in C.M.Appl.No.1 of 2016. 3. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent. 4. The respondent filed a suit for decree of specific performance of an agreement for sale of an immovable property. The appellants were contesting the suit. The Sub Court directed both parties to appear before the court for 3 F.A.O.No.283 of 2016 exploring the possibility of a mediation. But the appellants could not appear in terms of that direction and eventually they were declared exparte and the suit was decreed on 02.07.2013. The contention of the appellants is that their son was involved in a road accident and had been undergoing treatment for the serious injuries sustained in that accident. They had to leave their residence and to stay at Mukkam along with their injured son. As a result, they could not appear in court or to file an application to set aside the exparte decree in time. Citing those reasons, the appellants filed I.A.No.2211 of 2014. 5. In the light of the resistance by the respondent, the appellants were asked to adduce evidence and accordingly the 1[st] appellant was examined as PW1 and Exts.A1 to A5 were produced. The Sub Court, after considering the said evidence in detail, held that even accepting that the appellants’ son was under treatment as reflected from the oral testimony of PW1 and Exts.A1 to A5, the same was not sufficient to substantiate that the appellants were really prevented from appearing before the court at the time when 4 F.A.O.No.283 of 2016 the suit was taken up for consideration and also the period immediately followed. The suit was decreed exparte on 02.07.2013. It was much before that the appellants were asked to appear before the court in order to explore the possibility of a mediation. Their son was involved in a road accident in 2011 and his treatment was initially during the period from 23.05.2011 till 30.05.2011. There was a subsequent episode of his treatment in 2013 as well. If the son of the appellants had to undergo treatments for various periods, as an inpatient in the hospital, the difficulties thereby experienced by the appellants can well be inferred. Having considered those circumstances brought on record, it is unjust to take a strict view in the matter of condoning the delay, although the period is long. The delay is of 482 days. 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, which subserves the ends of justice, 5 F.A.O.No.283 of 2016 that being the life-purpose 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 to remove injustice. 6 F.A.O.No.283 of 2016 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 first one warrants strict approach whereas the second calls for a liberal delineation. 21.9 The conduct, behaviour and attitude of a party 7 F.A.O.No.283 of 2016 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 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, 8 F.A.O.No.283 of 2016 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. By applying principles laid down in the aforesaid decisions the evidence tendered by the appellants certainly justifies taking of a lenient view. Of course, the respondent has to face the ordeal of the continued litigation. That inconvenience can be compensated in terms of money as costs. This appeal can therefore be allowed. 10. Accordingly, this appeal is allowed and on setting aside the impugned order, I.A.No.2211 of 2014 is allowed on the condition that the appellants pay a cost of Rs.3,000/- to the respondent. Pay costs within two weeks. On such payment, the Sub Court, Tirur will restore O.S.No.325 of 2010 9 F.A.O.No.283 of 2016 on file and proceed with it in accordance with law. Both parties shall appear before the Sub Court, Tirur on 18.07.2023. The Sub Court, Tirur shall make every endeavour to dispose of O.S.No.325 of 2010 within a period of four months from the date of appearance of both the parties. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr