C. L. John s/o Levi v. Mariyamma Leelamma Kanjiram Vilaveedu and Kunjachan s/o Issac

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 13[TH] DAY OF JUNE 2023 / 23RD JYAISHTA, 1945** **F.A.O.NO. 251 OF 2015** **AGAINST THE ORDER DATED 15.07.2015 IN I.A.NOS.1411 AND 1412 OF 2014 IN A.S.NO.126 OF 2004 ON THE FILE OF THE SUB** ## **COURT, KOTTARAKKARA** ## **APPELLANT/PETITIONER:** **C.L.JOHN S/O.LEVI, PAMMANNOOR THEKKEKKARA VEEDU,PANDITHITTA MURI,THALAVOOR VILLAGE. BY ADV SRI.B.KRISHNA MANI** ## **RESPONDENTS/RESPONDENTS:** - **1 MARIYAMMA LEELAMMA KANJIRAM VILAVEEDU,KARIKKAM.P.O,IYPPALLOOR MURI,MELILA, KOTTARAKKARA TALUK,KOLLAM DISTRICT-691586.** - **2 KUNJACHAN** **S/O ISSAC,KARIKKATHIL KANJIRAMVILA VEEDU,IYPPALLOOR MURI,MELILA, KOTTARAKKARA TALUK,KOLLAM DISTRICT-691586.** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 13.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 F.A.O.No.251 of 2015 ## **JUDGMENT** ## P.G. Ajithkumar, J. This is an appeal filed under Order XXXIII, Rule 1(c) of the Code of Civil Procedure, 1908. The order of the Sub Court, Kottarakkara dated 15.07.2015 in I.A.Nos.1411 and 1412 of 2014 in A.S.No.126 of 2004 is challenged in this appeal. The appellant filed those interlocutory applications for readmission of the appeal, which was dismissed for default and to condone the delay of 418 days in filing the former application. The Sub Court dismissed those applications. 2. There was a delay of 18 days in filing this appeal. By the order dated 02.07.2018 in C.M.Appl.No.654 of 2015 condoned the delay. Despite giving notice, the respondents did not choose to appear before this Court. 3. Heard the learned counsel appearing for the appellant. 4. The appellant filed O.S.No.439 of 2001 before the Munsiff’s Court, Punalur seeking a decree of declaration and consequential reliefs. The respondents filed a written statement. The suit was dismissed as per the judgment dated 28.05.2004. Challenging the said judgment and the decree, the appellant has 3 F.A.O.No.251 of 2015 filed A.S.No.126 of 2004 before the Sub Court, Kottarakkara. That appeal was dismissed for default on 28.06.2014. The appellant filed I.A.Nos.1411 and 1412 of 2014 stating that the appellant was undergoing treatment for the rheumatic problem and therefore he could not appear before the court or instruct his counsel. Only after one year, his counsel informed that the appeal was dismissed for default. Moreover, he was residing at a far away place during the relevant period. Highlighting those facts the appellant had filed the aforesaid interlocutory applications, which were opposed by the respondents. The Sub Court, after hearing both sides and considering the oral testimony of the appellant tendered as PW1, held that there was no sufficient reason for condoning the delay. 5. The learned counsel appearing for the appellant would submit that oral evidence of PW1 was convincing and there was no reason to reject his evidence. The practical difficulties experienced by the appellant were convincingly deposed by him, and therefore, the appeal should have been readmitted to file, after condoning the delay. It is also submitted that considering the length of period of delay, the Sub Court should have taken a lenient view. 4 F.A.O.No.251 of 2015 ## 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 lifepurpose for the existence of the institution of Courts. 7. 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 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 5 F.A.O.No.251 of 2015 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 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 6 F.A.O.No.251 of 2015 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 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] 7 F.A.O.No.251 of 2015 8. 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 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. 9. Here, the delay in filing the application for readmitting the appeal is 418 days. Although the period of delay is not very short, considering the reasons stated to by PW1, we are of the view that a lenient view in the matter of condonation of delay should have been taken by the Sub Court. We are of the view that on compensating the inconvenience caused to the respondents, the delay can be condoned and the appeal can be readmitted. 8 F.A.O.No.251 of 2015 10. Accordingly, this appeal is allowed. The order of the Sub Court, Kottarakkara dated 15.07.2015 is set aside on payment of costs of Rs.2,500/-. The appellant shall deposit the amount of costs in Sub Court, Kottarakkara within a period of three weeks from today. On such deposit, the Sub Court, Kottarakkara will readmit the appeal to file and proceed with in accordance with law. The respondents can withdraw the amount of costs, if deposited. 11. The appeal is of the year 2004. The Sub Court shall make every endeavour to dispose of the appeal within a period of three months from the date of appearance of both the parties. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr