Beeran v. Ayishumma, Akkila and Ansa

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR.JUSTICE R.NARAYANA PISHARADI** **THURSDAY, THE 28TH DAY OF JUNE 2018/7TH ASHADHA, 1940 Mat.Appeal.No 449 of 2018** **(AGAINST THE ORDER DATED 28-02-2018 IN I.A.Nos.1481/2017 & 1480/2017 IN O.P.No.817/2007 OF FAMILY COURT, TIRUR)** ## **APPELLANT/RESPONDENT:** **BEERAN, S/O.KUNHAMMED, AMARAYIL VEEDU, KUTTIPPURAM P.O., KOTTAKKAL, TIRUR TALUK.** **BY ADVS. SRI.PHILIP J.VETTICKATTU SRI.VINEETH KURIAKOSE** ## **RESPONDENTS/PETITIONERS:** **1 AYISHUMMA, D/O.SAIDALAVI @ KUNHUTTY, KALADI MUTHUVIL, AMARIYIL HOUSE, KUTTIPPURAM P.O., KOTTAKKAL VIA, TIRUR TALUK-676 503.** **2 AKKILA, D/O.AMARIYIL BEERAN, KUTTIPPURAM P.O., KOTTAKKAL, TIRUR TALUK-676 503.** **3 ANSA, D/O.AMARIYIL BEERAN, P.O.KUTTIPPURAM, VIA. KOTTAKKAL, TIRUR TALUK-676 503. s BY ADV. SRI.K.P.SUDHEER** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 22.06.2018, THE COURT ON 28.06.2018 DELIVERED THE FOLLOWING:** **Mat.Appeal.No 449 of 2018** 2 ## **JUDGMENT** ## _**R. Narayana Pisharadi, J**_ **The appellant challenges the common order dated 28.2.2018 passed by the Family Court, Malappuram in the applications I.A.Nos.1480 and 1481 of 2017 in O.P.No.817 of 2007.** **2. The appellant is the respondent in** **O.P.No.817 of 2007 filed by his wife and daughters claiming an amount of Rs.10,85,160/- from him towards the value of the gold ornaments belonged to the wife and also towards past maintenance for them. The appellant was set ex-parte in O.P.No.817 of 2007. On 9.4.2008, the Family Court passed an ex-parte order against him directing him to pay an amount of Rs.10,85,160/- with interest at the rate of 6% per annum.** **3. After 113 months and 14 days (more than 9 years), the appellant filed the application I.A.No.1481 of 2017 for setting aside the ex-parte order passed against him in O.P.No.817 of 2007. He also filed I.A.No.1480 of 2017 for condoning the** **Mat.Appeal.No 449 of 2018** 3 **delay in filing the aforesaid application. As per the common order dated 28.2.2018, the Family Court dismissed both applications stating that the appellant did not show sufficient cause for the inordinate delay of more than nine years in filing the application for setting aside the ex-parte order. The aforesaid order is challenged in this appeal.** **4. We have heard the learned counsel for the appellant as well as the respondents.** **5. Admittedly, notice in O.P.No.817 of 2007 was not directly served on the appellant. Service of notice on him in O.P.No.817 of 2007 was effected by affixture and publication in a newspaper. The appellant contended before the lower court that at the time of issuing the notice in O.P.No.817 of 2007, he was not in station and that he had gone to Kannur and he returned to his native place only on 2.12.2009. The property of the appellant was attached in O.P.No.817 of 2007 but notice of attachment was also not served on the appellant. Therefore, the appellant contended that he was not aware of the exparte order passed against him by the court. He** **Mat.Appeal.No 449 of 2018** 4 **contended before the lower court that he had gone to the Village Office to link his adhar card number with the document relating to the property and then only he came to know about the attachment of the property and the case filed against him.** **6. The lower court has observed in the impugned order that the appellant has not disclosed before that court the date on which he went to the Village Office and came to know about the case filed against him. This is a fact not disputed before us. The lower court has rightly held that without knowing the date on which the appellant came to know about the case O.P.No.817 of 2007 filed against him, it is not possible to decide whether he has shown sufficient cause for the delay in filing the application for setting aside the ex-parte order passed against him in that case. In the memorandum of appeal, it is stated that it was on 16.9.2017 that the appellant came to know about the attachment of his property. It is not explained why this fact was not disclosed before the lower court. Mentioning such a date in the memorandum of appeal appears to be the result of** **Mat.Appeal.No 449 of 2018** 5 ## **afterthought.** **7. Admittedly, the appellant and his wife had executed an agreement on 2.12.2009. As per this document, they agreed to close or compromise all litigations pending between them before the courts. The appellant has contended that O.P.No.817 of 2007 is not mentioned in this agreement and his wife had suppressed the details of that case. On the other hand, the respondents would contend that it was not a case pending in the court and therefore, it was not mentioned in the agreement. However, on a perusal of the copy of the agreement produced by the appellant, it is seen that even the details of the cases which were not pending in the court are mentioned in that document. For example, the complaint filed as C.M.P.No.2558 of 2008 by the appellant, which was dismissed for default by the Judicial First Class** **Magistrate, Malappuram, is mentioned in this document. However, it is to be noted that from 2.12.2009 onwards the appellant and his wife are residing together. It is difficult to believe that during this long period, the appellant was not at all** **Mat.Appeal.No 449 of 2018** 6 **aware of the case which was filed against him by his wife and children in the Family Court as O.P.No.817 of 2007 and the ex-parte order passed against him in that case. It appears that the real intention of the appellant now is to sell his property without paying his wife and children the amount awarded by the court.** **8. True, the expression 'sufficient cause' in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice. Generally, delay is required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay. But, if there is negligence, deliberate or gross inaction or lack of bona fides on the part of the party or his counsel, there is no reason why the opposite side should be exposed to a time - barred litigation (See** _**G. Ramegowda v. Special Land Acquisition Officer, Bangalore: AIR 1988 SC 897**_ **). Even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within** **Mat.Appeal.No 449 of 2018** 7 **the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and his own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. If a party has been thoroughly negligent in implementing his rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to him in law as a result of his acting vigilantly. Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribed and the courts have no power to extend the period of limitation on equitable grounds (See** _**Ramachandran v. State of Kerala : AIR 1998 SC 2276**_ **).** **Mat.Appeal.No 449 of 2018** 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 (See** _**Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy : (2013) 12 SCC 649**_ **).** **9. In the instant case, the appellant failed to disclose before the lower court on which date he came to know about the attachment over his property and the ex parte order passed against him in O.P.No.817 of 2007. No evidence was also adduced by him to prove that there was sufficient cause for the delay in filing the application for setting aside the ex-parte order passed against him. An application for condonation of delay should not be dealt with in a routine manner. An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis** **Mat.Appeal.No 449 of 2018** 9 **on merits is seminal to justice dispensation system. The increasing tendency to perceive delay as a non - serious matter and, hence, lackadaisical propensity can be exhibited in a non - challant manner requires to be curbed, of course, within legal parameters. The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. 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 goby in the name of liberal approach (See** _**Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy : (2013) 12 SCC 649**_ **).** **10. In the aforesaid circumstances, we find no sufficient ground to interfere with the finding of the lower court that the appellant failed to show sufficient cause for the inordinate delay of more than nine years in filing the application for setting aside the ex-parte order passed against him in O.P.No.817 of 2007. The appeal is liable to be dismissed.** **Consequently, we dismiss the appeal. No costs.** **Mat.Appeal.No 449 of 2018** 10 ## **Sd/-** **V.CHITAMBARESH** ## **JUDGE** **Sd/-** **R. NARAYANA PISHARADI** **JUDGE** ss