Aboobacker v. Ayshath Rajeena

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM ``` ``` WEDNESDAY, THE 13[TH] DAY OF SEPTEMBER 2023 / 22ND BHADRA, ``` ``` 1945 ``` ``` MAT.APPEAL NO. 188 OF 2014 ``` ``` AGAINST THE ORDER DATED 02.08.2013 IN R.P.I.A.NO.369 OF 2012 ``` ``` IN O.P.NO.404 OF 2011 OF THE FAMILY COURT, KASARAGOD APPELLANT/PETITIONER/RESPONDENT: ``` ``` ABOOBACKER, AGED 38 YEARS, S/O. ABDUL REHIMAN, RESIDING AT ALMAS MANZIL, MUTTAM BANGAR, UPPALA, MANGALPADY VILLAGE, KASARAGOD DISTRICT. ``` ``` BY ADV SRI.SURESH KUMAR KODOTH ``` ## **`RESPONDENT/RESPONDENT/PETITIONER:`** ``` AYSHATH RAJEENA, AGED 28 YEARS, D/O. MOHAMMED, RESIDING AT AL AMEEN HOUSE, MANGALPADY VILLAGE, KASARAGOD DISTRICT-671322. ``` ``` THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON ``` ``` 13.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Mat.Appeal No.188 of 2014 ## **JUDGMENT** Anil K. Narendran, J. The appellant is the respondent in O.P.No.404 of 2011, which was one filed by the respondent herein-wife before the Family Court, Kasargod, seeking a decree of divorce to dissolve the marriage solemnised between them on 26.12.2006. The said original petition was one filed invoking the provisions under Section 2(ii) and (viii)(a) of the Dissolution of Muslim Marriage Act, 1939 alleging cruelty. In that original petition, the Family Court passed an ex-parte decree dated 31.01.2012. The appellant filed R.P.I.A.No.369 of 2012 invoking the provisions under Order IX Rule 13 of the Code of Civil Procedure, 1908 seeking an order to set aside ex-parte decree dated 31.01.2012, along with an application, i.e., I.A.No.368 of 2012, invoking the provisions under Section 5 of the Limitation Act, 1963 for condonation of delay of 243 days. I.A.No.368 of 2012 ended in dismissal, which was followed by the impugned order dated 02.08.2013 whereby R.P.No.369 of 2012 was also dismissed for the reasons stated therein. The reasoning of the court below in paragraph 5 of the impugned order reads thus; “The case of petitioner is that the O.P.No.404 of 2011 is filed by the respondent for dissolution of marriage and an 3 Mat.Appeal No.188 of 2014 exparte decree was passed on 31.01.2012. The petitioner was working in UAE and returned on 16[th] June, 2012. He left India for his job on 20[th] June, 2011 and returned on 16[th] August 2012. On 16[th] August 2012 he came again to his native place. On 08.10.2012 he contacted the relatives of the respondent and requested their help to settle the disputes between him and the respondent. To his shock they told him that the marriage between him and the respondent has already been dissolved as per the order of this court. On the next day itself, i.e., on 09.10.2012 he had verified the fact through his counsel and applied for the certified copy of the decree and he received the copies on 16.10.2012. In fact he came to know about the proceedings and the exparte decree only on 08.10.2012. There is no delay, negligence or latches on his part. There is a delay of 243 days in filing the application to set aside the exparte decree. The petitioner obtained a decree in her favour by suppressing material facts. She is well aware of the fact that he is working abroad at the time of filing the case and notice cannot be served on him in this residential address. The respondent manipulated the thing and made this court to believe that the notice is duly served. The allegations raised by the petitioner in the O.P. are false and grounds relied by the petitioner for obtaining the decree are not sustainable in law. Unless this court allow the petition and condone the delay of 243 days in filing the petition to set aside the exparte decree dated 31.01.2012 in O.P.404 of 2011, he will be put to irreparable injury, hardships and loss. O.P. No.404 of 2011, was decreed exparte since the petitioner has not appeared. It is stated that the notice was served to the 4 Mat.Appeal No.188 of 2014 respondent. The case of petitioner is that he was in Gulf at the time of issuing notice. No document is produced to show that he was in Gulf. The petitioner was continuously absent, after filing this petition. No oral or documentary evidence is adduced to substantiate the allegations stated in the petition. IA.No.368 of 2012 for condoning the delay of petition was dismissed. Hence the petition is dismissed.” Aggrieved by the said order, the appellant is before this Court in this appeal filed under Section 19(1) of the Family Courts Act. This appeal has been filed along with C.M.Appl.No.713 of 2014 seeking an order to condone the delay of 159 days in filing the appeal, which was condoned by a separate order of this date. 2. Heard the learned counsel for the appellant. 3. The issue that arises for consideration in this original petition is as to whether any interference is warranted in the impugned order dated 02.08.2013 of the Family Court, Kasargod whereby R.P.I.A.No.369 of 2012 stands dismissed for the reasons stated therein. 4. 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 5 Mat.Appeal No.188 of 2014 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 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. 5. 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 6 Mat.Appeal No.188 of 2014 explaining the sequence of events and the circumstances that led to the delay. 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, 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 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 delineation. 8. Though the expression ‘sufficient cause’ employed in 7 Mat.Appeal No.188 of 2014 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. 9. Order IX, Rule 13 of the Code provides for setting aside decree _ex parte_ against defendant. As per sub-rule (1) of Rule 13, in any case in which a decree is passed _ex parte_ against a defendant, he may apply to the court which the decree was passed for an order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into 8 Mat.Appeal No.188 of 2014 Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. As per the first proviso to sub-rule (1), where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also. As per the second proviso to sub-rule (1), no court shall set aside a decree passed _ex parte_ merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. As per the Explanation, where there has been an appeal against a decree passed _ex parte_ under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that _ex parte_ decree. ## 10. In **G.P. Srivastava v. R.K. Raizada [(2000) 3 SCC** **54]** in the context of an application filed under Order IX, Rule 13 of the Code, for setting aside an _ex parte_ decree, the Apex Court held that, the word ‘was prevented by any sufficient cause from appearing’ occurring in Order IX, Rule 13 of the Code must be liberally construed to enable the court to do complete justice between the parties, particularly when no negligence or inaction 9 Mat.Appeal No.188 of 2014 is imputable to the erring party. Sufficient cause for the purpose of Order IX, Rule 13 of the Code has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. 11. In **G.P. Srivastava** , the Apex Court held further that, ‘sufficient cause’ for non-appearance refers to the date on which the absence was made a ground for proceeding _ex parte_ and cannot be stretched to rely upon other circumstances anterior in time. If ‘sufficient cause’ is made out for non-appearance of the defendant on the date fixed for hearing when _ex parte_ proceedings initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the _lis_ decided on merits. 12. In the instant case, the Family Court, declined to condone the delay of 243 days in filing the application to set aside 10 Mat.Appeal No.188 of 2014 the ex parte decree, since the appellant was continuously absent and no documents were produced to show that he was in Gulf at the relevant time, as stated in the application. For condonation of delay of 243 days, the appellant has not shown sufficient cause. He has also not shown sufficient cause for his continuous absence when the original petition was listed before the Family Court. 13. Viewed in the light of the law laid down in the decisions referred to supra, it cannot be said that the Family Court went wrong in dismissing the application filed by the appellant for setting aside the ex-parte decree in O.P.No.404 of 2011. We find no reason to interfere with the impugned order of the Family Court. We also notice that though this appeal was filed on 18.02.2014 and notice in C.M.Appl.No.713 of 2014 was ordered on 26.05.2014, the appellant has not taken steps for an early disposal of this appeal, which was one filed challenging the exparte decree of divorce granted in favour of the respondent-wife on 31.01.2012 in O.P.No.404 of 2011. In the result, this appeal fails and the same is accordingly dismissed. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **VIJU ABRAHAM, JUDGE** AV/16/9