Aby K. George v. Dinesh V.C.

## **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 8[TH] DAY OF JUNE 2023 / 18TH JYAISHTA, 1945 FAO NO.58 OF 2020** **AGAINST THE COMMON ORDER DATED 13.08.2019 IN I.A.NO.870 OF 2019 AND I.A.NO.871 OF 2019 IN O.S.No.2 of 2010 BEFORE THE 1ST ADDITIONAL DISTRICT COURT, KOZHIKODE** ## **APPELLANT/PETITIONER/DEFENDANT:** **ABY K. GEORGE AGED 48 YEARS** **S/O.GEORGE JACOB, KULANGARA HOUSE, PALLOM P.O., KOTTAYAM-686007, HAVING BUSINESS AT CAMERA SCAN, 5/341 OF-5, KAIRALI BUILDING, MAVOOR ROAD, KOZHIKODE-673004.** **BY ADVS.** **VIZZY GEORGE KOKKAT SRI.C.HARIKUMAR SRI.CHERIAN MATHEW POOTHICOTE SRI.RENJITH RAJAPPAN** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **DINEESH V.C. AGED 46 YEARS S/O.V.C.MADHAVAN, SREE VAIKUNDAM, 30/1018A, KALUKULANGARA PARAMBA, NELLIKODE AMSOM, KOVOOR AMSOM, KOZHIKODE TALUK, KOZHIKODE-673016, HAVING BUSINESS AT CAMERA SCAN, 5/341 OF-5, KAIRALI BUILDING, MAVOOR ROAD, OPPOSITE NEW BUS STAND, TAZHEKKOD, KOZHIKODE-673004.** 2 FAO NO.58 of 2020 **BY ADVS. SRI.P.ABRAHAM CHERIAN SMT.N.RAJI** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 08.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 FAO NO.58 of 2020 ## **J U D G M E N T** ## P.G.Ajithkumar, J. This is an appeal filed under Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908. O.S.No.2 of 2010 before the District Court, Kozhikode was filed by the respondent seeking a decree of perpetual injunction from using the trademark, ‘CAMERA SCAN’. The appellant filed a counter-claim. The suit was decreed ex parte on 07.12.2018 and the counter-claim was dismissed. The appellant filed I.A.Nos.870 of 2019 and 871 of 2019 seeking to set aside the ex parte decree and for condonation of delay of 92 days. The 1st additional District Judge, Kozhikode as per the common order dated 13.08.2019 dismissed those applications. That order is under challenge in this appeal. 2. There was a delay of 210 days in filing this appeal. The delay was condoned as per the order dated 04.11.2022 on payment of a costs of Rs.1000/- to the Kerala High Court Legal Services Committee, which the appellant had paid. 3. Heard the learned counsel appearing for the 4 FAO NO.58 of 2020 appellant and the learned counsel appearing for the respondent. 3. The appellant would contend that he is the registered proprietor of the trademark ‘CAMERA SCAN’. But the respondent filed the suit disregarding that fact. The respondent however filed an appeal challenging the validity of the registration in favour of the appellant before the Intellectual Property Appellate Board. In the light of the pendency of that appeal, the court below stayed the proceedings in O.S. No.2 of 2010 until the disposal of the proceedings before the Appellate Board. The court below in 2019 took up the suit for trial. The appellant did not know about the same. His counsel shifted practice to Ernakulam and therefore the counsel also did not get information in time. Moreover, the appellant who was based at Kottayam was suffering from illness during that period. Only on 05.03.2019, the appellant could get information regarding the fact that the suit was decreed exparte on 07.12.2008. He immediately filed I.A Nos.870 of 2013 and 871 of 2013. 5 FAO NO.58 of 2020 4. The respondent opposed the said applications by filing a counter statement. The respondent attributed laches on the part of the appellant in appearing before the Court. Thus he maintained that there was no sufficient reason for condoning the delay or setting aside the ex parte decree. 6. The learned Additional District Judge did not accept the explanations furnished by the appellant for the delay in filing the application for setting aside the ex parte decree. It was observed that the date on which the appellant enquired about the suit to his counsel had not been stated in the petition. The Court below accordingly held that the appellant did not have bonafides in filing the petitions. Further, it was observed that the appellant moved on his wrong notions of fact and law and the delay and inaction occurred thereby cannot be condoned. 7. The learned counsel appearing for the appellant would submit that considering that the delay is of a short period, and that the suit was pending for years together without any action on account of the stay, the petitions filed 6 FAO NO.58 of 2020 by the appellant should have been allowed. It is further submitted that the reasons stated by the Court below for doubting the bonafides of the appellants are not sound. The learned counsel appearing for the respondent, on the other hand, would submit that the laches on the part of the appellant is quite clear from his averments itself and therefore the impugned order cannot be said to be wrong. 8. 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 lifepurpose for the existence of the institution of Courts. ## 9. 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 7 FAO NO.58 of 2020 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. - 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 8 FAO NO.58 of 2020 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 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 9 FAO NO.58 of 2020 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] ## 10. 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, 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 10 FAO NO.58 of 2020 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. 11. Here the delay is 92 days. The fact that the suit has been pending for quite a long period, for the reason that an appeal was pending before the Intellectual Property Appellate Board is beyond dispute. Unless the appellant obtained information regarding resumption of the proceedings in the suit, he would not have been in a position to appear in court and pursue his defense. 12. In the light of the law laid down in the aforesaid decisions, this is a case where a lenient view is warranted. It is seen that the appellant did not file any application to restore the counter-claim on file. That does not fail the application to set aside the ex parte decree in the suit since both suit and counter-claim have independent existence. 11 FAO NO.58 of 2020 Therefore, we are of the view that the appeal is liable to be allowed. This appeal is allowed and the impugned order dated 13.08.2019 in I.A.Nos 870 and 871 2019 is set aside. The 1[st] Additional District Court, Kozhikode will restore O.S. No.2 of 2010 on file. Both parties are directed to appear before the 1[st] Additional District Court, Kozhikode on 05.07.2023. The 1[st] Additional District Court shall make every endeavour to dispose of the suit within a period of three months from the date of appearance of the parties. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** PV