Col. Josy Joseph v. Ouseph and Litty Joseph

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN`** ## **`&`** ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` WEDNESDAY, THE 21[ST] DAY OF JUNE 2023 / 31ST JYAISHTA, 1945 F.A.O.NO.120OF 2016 ``` ``` AGAINST THE COMMON ORDER IN I.A.NOS.1087 AND 1088 OF 2015 IN O.S.NO.189 OF 2011 DATED 10.03.2016 ON THE FILE OF THE SUB COURT, PERUMBAVOOR ``` ``` APPELLANT/PETITIONER/IST DEFENDANT:- ``` ``` COL. JOSY JOSEPH AGED 51, S/O.OUSEPH, CHELLIAMPURAM HOUSE, KURUPAMPADY P.O., RAYAMANGALAM VILLAGE, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT. (AGE CORRECTED) ``` ``` BY ADV. ``` ``` SRI.G.SREEKUMAR (CHELUR) ``` ## **`RESPONDENTS/RESPONDENTS/PLAINTIFF AND 2ND DEFENDANT:-`** ``` 1 OUSEPH AGED 51, S/O. JOSEPH, CHELLIAMPURAM HOUSE, KURUPAMPADY P.O., KUNNATHUNAD TALUK, ERNAKULAM DISTRICT-682001.*(AGE CORRECTED) 2 LITTY JOSEPH AGED 45, W/O. BIJU, KURISINGAL HOUSE, UPUKANDAM, KOOTHATUKULAM P.O., ERNAKULAM DISTRICT-682001.*(AGE CORRECTED) ``` ``` *AGES OF THE APPELLANT, R1 AND R2 ARE CORRECTED AS 48, 76 AND 43 YEARS RESPECTIVELY VIDE ORDER DATED 30.05.2016 IN I.A.No.596 of 2016. ``` ``` BY ADVS. SRI.M.K.DILEEPAN ``` ``` 2 ``` FAO Nos.120 and 156 of 2016 ## **`SRI.TOMMY LOUIS`** ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 21.06.2023, ALONG WITH FAO.156/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 3 ``` FAO Nos.120 and 156 of 2016 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` WEDNESDAY, THE 21[ST] DAY OF JUNE 2023 / 31ST JYAISHTA, 1945 F.A.O.NO.156OF 2016 ``` ``` AGAINST THE COMMON ORDER IN I.A.NOS.1085 AND 1086 OF 2015 IN O.S.NO.189 OF 2011 DATED 10.03.2016 ON THE FILE OF THE SUB COURT, PERUMBAVOOR ``` ``` APPELLANT/PETITIONER/1ST DEFENDANT/COUNTER CLAIM - PETITIONER: ``` ``` COL. JOSY JOSEPH AGED 51, S/O. OUSEPH, CHELLIAMPURAM HOUSE, KURUPAMPADY P.O., RAYAMANGALAM VILLAGE, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT. ``` ``` BY ADV. SRI.G.SREEKUMAR (CHELUR) ``` ## **`RESPONDENTS/RESPONDENTS/PLAINTIFF AND 2ND DEFENDANT:-`** ``` 1 OUSEPH AGED 51, S/O. JOSEPH, CHELLIAMPURAM HOUSE, KURUPAMPADY P.O., KUNNATHUNAD TALUK, ERNAKULAM DISTRICT-683 545. ``` ``` 2 LITTY JOSEPH AGED 45, W/O. BIJU, KURISINGAL HOUSE, UPUKANDAM, KOOTHATUKULAM P.O., ERNAKULAM DISTRICT-686 662. ``` ``` BY ADVS. SRI.M.K.DILEEPAN SRI.TOMMY LOUIS ``` ``` 4 ``` FAO Nos.120 and 156 of 2016 ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 21.06.2023, ALONG WITH FAO.120/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 5 ``` FAO Nos.120 and 156 of 2016 ## **JUDGMENT** ## **Anil K.Narendran, J.** **- F.A.O.Nos.120 and 156:** The appellant is the 1[st] defendant in O.S.No.189 of 2011 on the file of the Sub Court, Perumbavoor, which was one filed by the 1[st] respondent herein, who is the father of the appellant, for partition. The 2[nd] respondent herein, who is the 2[nd] defendant, is the younger sister of the appellant. Their mother Cicily @ Cicilykutty died on 16.05.1976. In that suit, the appellant was set _ex parte_ on 30.10.2013 and an _ex parte_ decree was also passed, which was later set aside. For the second time, the appellant was set _ex parte_ on 03.09.2015 and an _ex parte_ preliminary decree was also passed. The counter claim of the appellant was dismissed. The appellant filed I.A.No.1088 of 2015 in O.S.No.189 of 2011, invoking the provisions under Order IX Rule 13 of the Code of Civil Procedure, 1908 seeking an order to set aside the _ex parte_ preliminary decree. I.A.No.1087 of 2015 was filed for condoning the delay of 35 days. He filed I.A.No.1086 of 2015 in the counter claim in O.S.No.189 of 2011, invoking the provisions under Order IX Rule 9 of the Code of Civil Procedure, seeking an order to restore the counter claim. I.A.No.1085 of 2015 was filed for condoning the delay of 35 days. All interlocutory applications ended in dismissal by a common order dated ``` 6 ``` FAO Nos.120 and 156 of 2016 10.03.2016, which is under challenge in these appeals, invoking the provisions under Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908. 2. On 30.05.2016, when F.A.O.No.120 of 2016 filed challenging the common order dated 10.03.2016 in I.A.No.1087 and 1088 of 2015 in O.S.No.189 of 2011 came up for admission, urgent notice before admission was ordered to the respondents. In I.A.No.549 of 2016, this Court passed the following order: The execution proceedings, if any, on the basis of _ex parte_ decree in this case, will stand deferred for a period of three weeks. 3. On 27.06.2016, when F.A.O.No.156 of 2016 filed challenging the common order dated 10.03.2016 in I.A.No.1085 and 1086 of 2015 in O.S.No.189 of 2011 came up for admission, this Court admitted the matter on file and urgent notice was issued to the respondents. 4. On 20.06.2023, when these matters came up for consideration, the learned counsel for the appellant submitted that the 1[st] respondent is no more and the legal representatives of the said respondent are already in the party array as the appellant and the 2[nd] respondent and that, a memo to that effect will be filed. 5. The learned counsel for the appellant has filed a memo ``` 7 ``` FAO Nos.120 and 156 of 2016 dated 21.06.2023 in both the appeals, wherein it is stated that the 1[st] respondent in the appeal died on 19.11.2016 and the surviving legal heirs of the 1[st] respondent are already in the party array as the appellant and the 2[nd] respondent and hence there is no abatement in the appeals. The said memo is recorded. Registry to show the status of the 1[st] respondent appropriately, in the cause title of the appeals. 6. Heard the learned counsel for the appellant and also the learned counsel for the respondents. Despite service of notice none appears for the 2[nd] respondent-2[nd] defendant. 7. Order IX, Rule 8 of the Code of Civil Procedure deals with procedure where defendant only appears. As per Order IX, Rule 8, where the defendant appears and the plaintiff does not appear when the suit is called for hearing, the court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the court shall pass a decree against the defendant upon such admission, and, where only a part of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. 8. Order IX, Rule 9 of the Code provides that decree against plaintiff by default bars fresh suit. As per sub-rule (1) of Rule 9, where a suit is wholly or partly dismissed under Rule 8, ``` 8 ``` FAO Nos.120 and 156 of 2016 the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the court that there was - sufficient cause for his non appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. As per subrule (2) of Rule 9, no order shall be made under this rule unless notice of the application has been served on the opposite party. 9. Order IX, Rule 13 of the Code provides for setting aside decree ex parte against defendant. As per sub-rule (1) of Rule 13, in any case in which a decree is passed _ex parte_ against a defendant, he may apply to the court which the decree was passed for an order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. As per the first proviso to sub-rule (1), where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of ``` 9 ``` FAO Nos.120 and 156 of 2016 the other defendants also. As per the second proviso to sub-rule (1), no court shall set aside a decree passed _ex parte_ merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. As per the Explanation, where there has been an appeal against a decree passed _ex parte_ under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that _ex parte_ decree. 10. In **G.P. Srivastava v. R.K. Raizada [(2000) 3 SCC 54]** in the context of an application filed under Order IX, Rule 13 of the Code, for setting aside an _ex parte_ decree, the Apex Court held that, the word ‘was prevented by any sufficient cause from appearing’ occurring in Order IX, Rule 13 of the Code must be liberally construed to enable the court to do complete justice between the parties, particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order IX, Rule 13 of the Code has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. ``` 10 ``` FAO Nos.120 and 156 of 2016 11. In **G.P. Srivastava** , the Apex Court held further that, ‘sufficient cause’ for non-appearance refers to the date on which the absence was made a ground for proceeding _ex parte_ and cannot be stretched to rely upon other circumstances anterior in time. If ‘sufficient cause’ is made out for non-appearance of the defendant on the date fixed for hearing when _ex parte_ proceedings initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not malafide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the _lis_ decided on merits. ## 12. In **M. Shivananda v. M. Susheela and others [2021** **(5) KHC 357]** a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party held that Order IX, Rule 9 of the Code of Civil Procedure enables the court to set the dismissal aside, if the plaintiff satisfies the court that there was sufficient - cause for his non appearance when the suit was called on for hearing. On the other hand, Order IX, Rule 13 of the Code enables the court which passed a decree _ex parte_ to set it aside, if the ``` 11 ``` FAO Nos.120 and 156 of 2016 defendant satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. Therefore, the principle laid down by the Apex Court in **G.P. Srivastava [(2000)** **3 SCC 54]** , in the context of an application filed under Order IX, Rule 13 of the Code, apply with equal force in the consideration of an application filed under Order IX, Rule 9 of the Code. ## 13. In **Peeves Enterprises v. Muhammed Ashraf [2015** **(3) KHC 981]** , relying on the law laid down by the Apex Court in **G.P. Srivastava** , a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party held that, on an application filed under Order IX, Rule 13 of the Code of Civil Procedure, the court has to find out whether the erring party has made out sufficient cause for setting aside the _ex parte_ decree. When no negligence or inaction is imputable to the erring party and the absence was not malafide or intentional, the discretion has to be exercised in his favour, especially when the application is within the statutory time limit. In appropriate cases, the plaintiff can be compensated by adequate costs for the loss of time and the inconvenience caused to him. But any such condition shall not be too onerous. 14. The Limitation Act, 1963 was enacted by the Parliament ``` 12 ``` FAO Nos.120 and 156 of 2016 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 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. 15. 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 ``` 13 ``` FAO Nos.120 and 156 of 2016 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. 16. 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 life-purpose for the existence of the institution of courts. 17. 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. ``` 14 ``` FAO Nos.120 and 156 of 2016 ## 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 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 ``` 15 ``` FAO Nos.120 and 156 of 2016 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.” 18. In **Esha Bhattacharjee** , after summerising the principles applicable while dealing with an application for condonation of delay, the Apex Court added some more guidelines taking note of the present day scenario, that an application for ``` 16 ``` FAO Nos.120 and 156 of 2016 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 base of 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.” ``` 17 ``` FAO Nos.120 and 156 of 2016 ## 19. 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 in which one among us [Anil K. Narendran, J] was a party 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. 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. 20. In the instant case, in the affidavit filed in support of the applications filed to set aside the _ex parte_ preliminary decree in O.S.No.189 of 2011 and to restore the counter claim in the said suit, which were dismissed, the appellant-1[st] defendant has stated ``` 18 ``` FAO Nos.120 and 156 of 2016 that, on 03.09.2015, the date on which the matter was listed before the court below, he fell down and had a fracture on his right foot. Since the appellant was taken to hospital, he could not contact his counsel. On account of his absence, an _ex parte_ preliminary decree was passed and the counter claim was also dismissed, on 03.09.2015. Since the appellant has to leave Kerala on 06.09.2015 to join duty, there occurred a delay of 35 days in filing the application to set aside the _ex parte_ preliminary decree and the application to restore the counter claim. The appellant has not chosen to produce any medical certificate to prove that he sustained a fracture on 03.09.2019. The court below disbelieved the case of the appellant based on the statement that he left Kerala on 06.09.2015 to join duty in Army. 21. Viewed in the light of the law laid down in the decisions referred to supra, it cannot be said that the absence of the appellant-1[st] defendant before the court below is either malafide or intentional. It cannot also be said that the appellant has not shown sufficient cause for condonation of delay of 35 days in filing the application to set aside the _ex parte_ preliminary decree and also the application to restore the counter claim. In such circumstances, the above appeals are allowed by setting aside the impugned order dated 10.03.2016 passed in ``` 19 ``` FAO Nos.120 and 156 of 2016 I.A.Nos.1085, 1086, 1087 and 1088 of 2015 in O.S.No.189 of 2011 on the file of the Sub Court, Perumbavoor. Accordingly, the _ex parte_ preliminary decree dated 03.09.2015 in O.S.No.189 of 2011 is set aside and the counter claim is restored to file. Since the original suit is of the year 2011, the Subordinate Judge, Perumbavoor shall proceed with O.S.No.189 of 2011 and counter claim and dispose of those matters within a period of four months from the date of receipt of a certified copy of this judgment. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** PV