Anie (Legal Heir of the deceased 2nd Defendant) v Parish Chit Company Ltd and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 24[TH] DAY OF AUGUST 2021 / 2ND BHADRA, 1943** **FAO NO. 48 OF 2020** **AGAINST THE ORDER DATED 16.01.2020 IN I.A.NOS.530 AND 531 OF 2019 IN** **OS 508/2013 OF ADDITIONAL SUB COURT, IRINJALAKUDA, THRISSUR.** ## **APPELLANT/3rd PETITIONER/NO PARTY (LEGAL HEIR OF DECEASED 2ND** **DEFENDANT):** **ANIE, AGED 55 YEARS D/O. UDANIPARAMBIL KOCHAPPU @ OUSEPH, MATTATHOOR VILLAGE, CHUNKAL DESOM, MUKUNDAPURAM TALUK, PIN 680 684** **BY ADVS. S.ANANTHAKRISHNAN SRI.SAIGI JACOB PALATTY** ## **RESPONDENTS/RESPONDENTS 1 & 2 AND PETITIONERS 1& 2/PLAINTIFF; 1ST** ## **DEFENDANT AND NO PARTIES (LEGAL HEIR OF 2ND DEFENDANT):** - **1 THE PARISH CHIT COMPANY LTD CHERPU, TRISSUR 680 561 REPRESENTED BY ITS MANAGING DIRECTOR** - **2 BEENA JOY, AGED 52 YEARS W/O. UDANIPARAMBIL JOY, MATTATHOOR VILLAGE, CHUNKAL DESOM, MUKUNDAPURAM TALUK, PIN 680 684** - **3 ANNAM, AGED 80 YEARS W/O. UDANIPARAMBIL KOCHAPPU @ OUSEPH, MATTATHOOR VILLAGE, CHUNKAL DESOM, MUKUNDAPURAM TALUK, PIN 680 684** - **4 PAULOSE @ JOY, AGED 57 YEARS S/O. UDANIPARAMBIL KOCHAPPU @ OUSEPH, MATTATHOOR VILLAGE, CHUNKAL DESOM, MUKUNDAPURAM TALUK, PIN 680 684** **BY ADVS. SRI.LINDONS C.DAVIS FOR R1 SMT.ANU S NAIR FOR R2 & R3 SMT.E.U.DHANYA FOR R1 SRI.RAJITH DAVIS FOR R1** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 24.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- F.A.O.No.48/2020 ## **JUDGMENT** ## Anil K.Narendran, J. The appellant is one of the legal heirs of the deceased 2[nd] defendant in O.S.No.508 of 2013 on the file of the Additional Sub Court, Irinjalakuda, a suit filed by the 1[st] respondent, a company engaged in chit business, for recovery of an amount of Rs.14,09,426/- with interest, from defendants 1 and 2. That suit was decreed _ex parte,_ on 25.09.2013. The appellant filed I.A.No.531 of 2019, an application under Order IX Rule 13 of the Code of Civil Procedure, 1908, seeking an order to set aside the _ex parte_ decree, along with I.A.No.530 of 2019 filed under Section 5 of the Limitation Act, 1963 for condonation of the delay of 1936 days. The plaintiff opposed the above applications by filing objection. Before the Sub Court, the appellant was examined as PW1. After considering the pleadings and materials on record, the Sub Court by the impugned order dated 16.01.2020, dismissed both the interlocutory applications with cost. Feeling aggrieved, the appellant has filed this appeal, under Order XLIII Rule 1(d) of the Code of Civil Procedure. F.A.O.No.48/2020 -3- 2. On 18.03.2020, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondents, by speed post. In I.A.No.1 of 2020, this Court granted an interim stay of further proceedings in E.P.No.39 of 2017 in O.S.No.508 of 2013 till 20.05.2020. The said interim order, which was extended from time to time, is still in force. 3. On 16.07.2021, when this appeal came up for consideration, Registry was directed to call for LCR in I.A.Nos.530 of 2019 and 531 of 2019 in O.S.No.508 of 2013 and also in E.P.No.39 of 2017 in O.S.No.508 of 2013. 4. Heard the learned counsel for the appellant, the learned counsel for the 1[st] respondent and also the learned counsel for respondents 2 and 3. Despite service of notice, none appears for the 4[th] respondent. 5. In the impugned order dated 16.01.2020, the Sub Court observed that, the petitioners in I.A.Nos.530 of 2019 and 531 of 2019, who are the legal heirs of the deceased 1[st] defendant, appeared in the execution proceedings on 10.07.2017, which is not in dispute. Therefore, the statement that they came to know about the _ex parte_ order only on -4- F.A.O.No.48/2020 31.01.2019 is false. On their primary contention that the summons in the suit was not duly served upon the defendants, the Sub Court found that, both the defendants were served with summons and the same was recorded in the proceedings on 24.07.2013. Due to the absence of the defendants after service of summons, they were set _ex parte_ . The appellant, who was examined as PW1 deposed that she obtained the plaint schedule property in the year 2014. She pleaded ignorance as to how the title deed of the said property had come into the possession of the plaintiff. PW1 deposed that she never inquired about the same with the plaintiff. The Sub Court observed that, as an ordinary prudent person, she might have inquired about the title deed of the property. Therefore, a reasonable inference can be drawn that PW1 had knowledge about the deposit of title deed of the plaint schedule property with the plaintiff. If it is so, she might have got information about the suit that being instituted against her father. The Sub Court found that the petitioners in I.A.Nos.530 of 2019 and 531 of 2019 miserably failed to offer any satisfactory explanation for the delay in filing the application to set aside the _ex parte_ decree. In the said circumstances, the Sub Court -5- F.A.O.No.48/2020 held that they are not entitled to get the delay condoned and to set aside the _ex parte_ decree. 6. On a perusal of the LCR in E.P.No.39 of 2017 in O.S.No.508 of 2013, we find that the endorsements dated 27.05.2017 and 10.07.2017 in the ‘proceedings sheet’ regarding appearance of judgment debtors 3 and 4 are not legible. On 29.01.2018, it is endorsed in the proceedings sheet that there is no representation for the judgment debtors. Therefore, notice was repeated to judgment debtors 3 and 4. Thereafter, on 21.12.2018, Rule 66 notice was repeated against the judgment debtors 3 and 4 and they entered appearance on 04.02.2019. From the LCR, it is seen that, in E.P.No.39 of 2017, no lawyer had filed vakalat for judgment debtors 3 and 4 till 04.02.2019. The decree holder has no case that, on 10.07.2017 judgment debtors 3 and 4 have entered appearance in person, in the execution proceedings. We find no materials in the LCR showing admission on the part of the judgment debtors that they appeared in the execution proceedings on 10.07.2017. 7. Having considered the pleadings and materials on record and also the submissions made by the learned counsel -6- F.A.O.No.48/2020 on both sides, we find that I.A.No.530 of 2019 filed under Section 5 of the Limitation Act, 1963 for condonation of the delay of 1936 days; and I.A.No.531 of 2019, an application under Order IX Rule 13 of the Code of Civil Procedure, 1908, seeking an order to set aside the _ex parte_ decree requires reconsideration at the hands of the Sub Court, after affording both sides a reasonable opportunity to substantiate their rival contentions. 8. 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 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 -7- F.A.O.No.48/2020 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. 9. 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. 10. 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 -8- F.A.O.No.48/2020 cause' employed by the Legislature is adequately elastic to enable the c ourts 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. 11. 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. 12. 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, -9- ## F.A.O.No.48/2020 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. 13. In such circumstances, this appeal is allowed by setting aside the common order dated 16.01.2020 in I.A.Nos.530 of 2019 and 531 of 2019 in O.S.No.508 of 2013 of the Sub Court, Irinjalakuda, and the said court is directed to reconsider those interlocutory applications, strictly in accordance with law, after affording both sides a reasonable opportunity to substantiate their contentions. The Sub Court shall pass appropriate orders on the said interlocutory applications, as expeditiously as possible, at any rate, within a period of two months from the date of production of a certified -10- F.A.O.No.48/2020 copy of this judgment. The interim order granted by this Court in I.A.No.1 of 2020 shall continue till orders are passed by the Sub Court, as directed above. The legal and factual contentions raised by both sides are left open to be raised before the court below, at the appropriate stage. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/K. BABU, JUDGE** csl