Anandavalliyamma and others v. Kerala Housing Finance Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN THURSDAY, THE 6[TH] DAY OF OCTOBER 2022 / 14TH ASWINA, 1944 FAO NO. 198 OF 2018** **IA NO.833/2016 IN OS 106/2013 OF SUB COURT,** ## **PATHANAMTHITTA** **APPELLANTS/PETITIONERS IN IA NO.833/2016/DEFENDANTS IN OS 106/2013:** 1 ANANDAVALLIYAMMA, AGED 72 YEARS, W/O RAMACHANDRAN NAIR, PUTHENVEETTIL KUTTIYIL HOUSE, CHERIYANADU KIZHAKKUM MURI, CHERIYANADU VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DISTRICT (NOW RESIDING AT: THATTANVILA VEEDU, NEAR LEELA KALYANA MANDIRAM, ULOOR CHEKKALAMUKKU, THIRUVANANTHAPURAM DISTRICT. 2 RAJU.P.R., AGED 42 YEARS, S/O.ANANDAVALLIYAMMA, PUTHENVEETTIL KUTTIYIL HOUSE, CHERIYANADU KIZHAKKUM MURI, CHERIYANADU VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DISTRICT (NOW RESIDING AT: THATTANVILA VEEDU, NEAR LEELA KALYANA MANDIRAM, ULOOR CHEKKALAMUKKU, THIRUVANANTHAPURAM DISTRICT. 3 ABHILASH.R.NAIRM, AGED 38 YEARS, S/O.ANANDAVALLIYAMMA, PUTHENVEETTIL KUTTIYIL HOUSE, CHERIYANADU KIZHAKKUM MURI, CHERIYANADU VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DISTRICT (NOW RESIDING AT: THATTANVILA VEEDU, NEAR LEELA KALYANA MANDIRAM, ULOOR CHEKKALAMUKKU, THIRUVANANTHAPURAM DISTRICT. BY ADV V.PHILIP MATHEW FAO NO. 198 OF 2018 ..2.. **RESPONDENT/RESPONDENT IN IA NO.833/2016/PLAINTIFF IN OS NO.106/2013:** KERALA HOUSING FINANCE LTD., KOZHENCHERRY, PATHANAMTHITTA DISTRICT – 689641. REPRESENTED BY ITS BRANCH MANAGER, ALIEAMMA MATHEW, AGED 52, W/O T.V .MATHEW, THEKKETHI VEEDU, VALLAMKULAM P.O., ERAVIPEROOR VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT - 689542. BY ADV SRI.R.RAMADAS THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 06.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO NO. 198 OF 2018 **==> picture [31 x 8] intentionally omitted <==** ## **'CR'** ## **JUDGMENT** ## SHOBA ANNAMMA EAPEN, J. This appeal is filed by the defendants in O.S.No.106 of 2013 on the file of the Sub Court, Pathanamthitta. They filed IA No.833 of 2016 along with IA No.834 of 2016 seeking to set aside the _ex-parte_ decree in the suit and to condone the delay of 931 days. The Sub Court dismissed the applications by separate orders dated 29.09.2018. Challenging the order in IA No.833 of 2016, the appellants have preferred this appeal under Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908. 2. The case of the appellants is that on receipt of summons in the year 2013 in O.S.No.106 of 2013, the appellants/defendants entrusted vakalath and concerned documents to Adv.Rino Vadakkethara, but, the Advocate failed to inform about the progress of the case and it is only on FAO NO. 198 OF 2018 **==> picture [31 x 8] intentionally omitted <==** 10.09.2016, when the appellants/defendants received a copy of execution petition filed before the Sub Court, Chengannoor, they came to know about the _ex parte_ decree. On getting notice in the execution petition, they filed I.A.No.833 of 2016 along with IA No.834 of 2016 in O.S.No.106 of 2013, whereby, they maintained that there was no laches or negligence on their part. 3. The respondent-plaintiff filed a counter statement denying the said contentions of the appellants-defendants. The respondent-plaintiff would contend that the defendants had received the summons in the suit and it was the duty of the defendants to file written statement and contest the case. Further, it was contended that there is a delay of 931 days in filing the application and no satisfactory reasons have been given for the delay and that the appellants/defendants are deliberately prolonging the matter by filing Interlocutory Applications, FAO NO. 198 OF 2018 **==> picture [31 x 8] intentionally omitted <==** and therefore, there is laches and negligence on their part. 4. The learned counsel appearing for the appellants would submit that sufficient cause was stated in the affidavit for their non appearance before the court below and for the delay in filing the application. According to the learned counsel, the appellants/defendants could not contest the case because they were unaware of the posting of the case and the Advocate, who was entrusted with vakalath, failed to inform the appellants/defendants regarding the status of the case. The learned counsel further submits that the appellants have strong contentions in the case and one more opportunity may be granted for them to contest the case. 5. 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 FAO NO. 198 OF 2018 **==> picture [31 x 8] intentionally omitted <==** 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, justice-oriented, 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 factsituation. FAO NO. 198 OF 2018 ..7.. 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 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 FAO NO. 198 OF 2018 ..8.. 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.” ## 6. In **Esha Bhattacharjee** ( _supra),_ the Apex Court added some more guidelines taking note of the present day scenario that 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. An application for condonation of delay should not be dealt with in a routine manner on the basis of FAO NO. 198 OF 2018 **==> picture [31 x 8] intentionally omitted <==** 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 curbed, of course, within legal parameters.” ## 7. 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 held that, though the expression FAO NO. 198 OF 2018 **==> picture [37 x 8] intentionally omitted <==** ‘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 **Collector** **Land Acquisition, Anantnag & Another vs. Mst. Katiji & Others [(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** ( _supra),_ 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. 8. The delay in this case is 931 days. The delay is, therefore, long. But, when on an appraisal of the facts of this case, which are mentioned above, we are of the view that FAO NO. 198 OF 2018 **==> picture [37 x 8] intentionally omitted <==** discretion in the matter of condonation of delay has to be exercised in favour of the appellants. Also, we are of the view that this is a fit case, where the appellants are entitled to have an opportunity to contest the matter and get a decision on merits. Hence, we find that the order of the Sub Court in IA No.833 of 2016 is liable to be set aside. The delay is liable to be condoned and the decree dated 28.02.2014 is to be set aside. 9. On account of the long delay, the respondent was put to much inconvenience. The respondent filed an execution petition and prosecuted the same, which would become futile on account of this judgment. Therefore, the inconvenience caused to the respondent has to be remedied by payment of costs. Accordingly, this appeal is allowed. (a) The decree dated 28.02.2014 is set aside. FAO NO. 198 OF 2018 **==> picture [37 x 8] intentionally omitted <==** (b) I.A.No.833 of 2016 in O.S.No. 106 of 2013 is allowed on payment of costs of Rs.10,000/- (Rupees ten thousand only) by the appellants to the respondent. (c) Costs shall be paid through the counsel appearing for the plaintiffs before the court below within a period of four weeks from today and receipt shall be produced. (d) On payment of costs, the suit will stand restored on file. In case of failure to pay costs as aforementioned, the appellants will not be entitled to get the benefit of this judgment and the suit will stand allowed. (e) Both parties will appear before the Sub Court, Pathanamthitta, on 02.11.2022. The appellants shall file a written statement in the suit within two weeks from 02.11.2022. Being an old suit, the Sub Court, Pathanamthitta, is directed to dispose of the suit as expeditiously as possible, at any FAO NO. 198 OF 2018 **==> picture [37 x 8] intentionally omitted <==** rate, within a period of four months from 02.11.2022. **Sd/-** **A. MUHAMED MUSTAQUE JUDGE Sd/SHOBA ANNAMMA EAPEN JUDGE** bka/-