F.A.O. No. 119 of 2022

# **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. 119 OF 2022** **AGAINST THE ORDER DATED 05.08.2022 IN I.A.NO.1 OF 2022 IN O.S.NO.49 OF 2014 ON THE FILE OF THE SUB COURT, TIRUR APPELLANT/PETITIONER/DEFENDANT:** **FAISAL AGED 46 YEARS, S/O ABDUL RAHMAN, RESIDING AT KUMMALI HOUSE, THANALUR AMSOM, AREAKAD DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN – 676307.** **BY ADVS. J.R.PREM NAVAZ SUMEEN S. O.MOHAMED BASIL KOYA THANGAL IRSHAD K.K. MUHAMMED SWADIQ** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **SAIFUDEEN AGED 39 YEARS S/O POCKER HAJI, RESIDING AT PANNIKKANDATHIL HOUSE, ITTILAKKAL HOUSE, ITTILAKKAL P.O, PONMUNDAM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN – 676106.** **BY ADVS. K.P.SUDHEER ADVOCATE J.RAMKUMAR** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 13.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 F.A.O.No.119 of 2022 ## **JUDGMENT** ## P.G. Ajithkumar, J. This is an appeal filed under Section 104 read with Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908. 2. The appellant is the defendant in O.S.No.49 of 2014 on the file of the Sub Court, Tirur. The suit was decreed exparte on 04.12.2015. I.A.No.1 of 2022 filed by the appellant seeking to set aside that decree was dismissed. That order, which is dated 05.08.2022, is under challenge in this appeal. 3. On 11.10.2022, the appeal was admitted and an interim order staying further proceedings pursuant to the judgment and decree in O.S.No.49 of 2014 was granted for a period of two months. That order was extended from time to time. The matter was referred for mediation in order to explore the possibility of settlement. But their attempt was failed. 4. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 5. The learned counsel appearing for the appellant 3 F.A.O.No.119 of 2022 would submit that the Sub Court, Tirur banked upon the failure to file an application under Section 5 of the Limitation Act, 1963, in order to dismiss I.A.No.1 of 2022. The decree in the suit was passed on 04.12.2015 and I.A.No.1 of 2022 was filed on 07.01.2022. The learned counsel appearing for the appellant placing reliance on the decision in **Unniraman v. Padmanabhan [1987 (2) KLT 1023]** contended that an application for condonation of delay is not always essential and the court can consider whether there is sufficient reason to condone the delay even in the absence of an application. In the said decision, a learned Single Judge of this Court held that in a case where there is pleading and evidence in the application for setting aside the decree regarding the reason for the delay, the same can be considered. Even if the said proposition is accepted, there is no improvement to the case of the appellant. The appellant has filed I.A.No.1 of 2022 on the premise that there was no delay and he was not obliged to explain the reason for the delay. He took the stand that only when he received notice in E.A.No.1 of 2021 in E.P.No.16 of 2016, he came to know about the decree and therefore, his application filed on 07.01.2022 is well within time. 4 F.A.O.No.119 of 2022 6. The appellant despite taking up the contention that within 30 days of getting knowledge about the decree, he filed I.A.No.1 of 2022, nothing has been stated in the affidavit in support of the said petition as to when he received notice in E.A.No.1 of 2021 in E.P.No.16 of 2016. Although he contended that he did not know about the suit ever before the receipt of the notice in E.A.No.1 of 2021, the circumstances show otherwise. It may be noted that substituted service was effected in the suit. A paper publication was also taken out. When there was such a service of summons, the presumption is that the appellant did get notice regarding pendency of the suit. It is his burden to prove that he did not actually get notice regarding the pendency of the suit. He did not venture to adduce any evidence to discharge that burden. In that view of the matter, it cannot be said that the appellant knew about the suit only when he received notice in E.A.No.1 of 2021. 7. 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, 5 F.A.O.No.119 of 2022 which subserves the ends of justice, that being the lifepurpose for the existence of the institution of Courts. 8. 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 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 6 F.A.O.No.119 of 2022 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 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 7 F.A.O.No.119 of 2022 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] ## 9. 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 8 F.A.O.No.119 of 2022 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. 10. This is a case where an application for setting aside the decree was filed after six years. Nothing has been pleaded by the appellant regarding the reason for the delay. Of course, his case is that there was no delay since he filed I.A.No.1 of 2022 within the statutory period, after getting knowledge about the decree. That plea has not been substantiated. Therefore, the appellant has the burden to prove that there was sufficient cause for the delay so as to get the exparte decree set aside. Considering the length of the delay, a strict approach is required while appreciating the reason furnished for condonation of delay. 11. The Apex Court in **Sabarmati Gas Limited v. Shah Alloys Limited [(2023) 3 SCC 229]** held that 'sufficient cause' is the cause which a party could not be blamed. 9 F.A.O.No.119 of 2022 12. When the appellant failed to place on record any material to prove that there was sufficient cause that prevented him from approaching the court in time for setting aside the decree, it cannot be said that there is sufficient cause for the delayed filing of I.A.No.1 of 2021. The appeal is therefore unsustainable. The appeal fails. Accordingly, the appeal is dismissed. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr