Fasal P.B and Haleema v. K.A. Salim and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 30[TH] DAY OF MAY 2022 / 9TH JYAISHTA, 1944 MAT.APPEAL NO. 774 OF 2020** **AGAINST THE ORDER DATED 05.11.2019 IN I.A.NOS.694 & 695 OF 2019 IN O.P.NO.204 OF 2017 OF FAMILY COURT,** ## **MUVATTUPUZHA** ## **APPELLANTS/PETITIONERS IN IA:** - **1 FASAL P.B AGED 32 YEARS, S/O. BASHEER.P.K., PUNNAKUNNEL HOUSE, THARBIATH NAGAR, KAVUMKARA, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT.** - **2 HALEEMA,** **AGED 55 YEARS, D/O.MAMMU, PUNNAKUNNEL HOUSE, KAVUMKARA, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK,ERNAKULAM DISTRICT.** **BY ADVS.** **K.R.AVINASH (KUNNATH) SRI.P.M.RAFEEK SRI.C.H.ABDUL RASAC** ## **RESPONDENTS/ADDITIONAL RESPONDENTS:** - **1 K.A.SALIM S/O. K.A.ALIYAR, KAREPARAMBIL HOUSE, RANDAR P.O., CHALIKADAVU, MUVATTUPUZHA-686 673.** - **2 SUBAIDA SALIM,** **AGED 52 YEARS, W/O. K.A SALIM, KAREPARAMBIL HOUSE, RANDAR P.O., CHALIKADAVU, MUVATTUPUZHA-686 673.** 2 Mat.Appeal No.774 of 2020 - **3 SHEFIN K.SALIM** **AGED 26 YEARS, S/O. K.A SALIM, KAREPARAMBIL HOUSE, RANDAR P.O., CHALIKADAVU, MUVATTUPUZHA-686 673.** **BY ADVS.** **SRI.R.O.MUHAMED SHEMEEM SMT.NASEEHA BEEGUM P.S.** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 30.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 Mat.Appeal No.774 of 2020 ## **JUDGMENT/ORDER** ## Ajithkumar, J. This is an appeal filed under Section 19(1) of the Family Courts Act, 1984. C.M.Appl.No.1 of 2020 was filed seeking to condone the delay of 338 days in filing the appeal. 2. O.P.No.204 of 2017 filed by the wife of the 1[st] appellant before the Family Court, Muvattupuzha was decreed ex parte on 29.12.2017. The appellants filed I.A.No.694 of 2019 to condone the delay of 469 days and I.A.No.695 of 2019 to set aside the said decree. The Family Court dismissed the said applications. This appeal was filed challenging the said common order dated 5.11.2019. 3. On 30.11.2020, when this matter came up for admission, a consolidated notice was ordered to be served on the respondents on the appeal and C.M.Appl.No.1 of 2020. The respondents entered appearance through their learned counsel. 4. Heard the learned counsel appearing for the 4 Mat.Appeal No.774 of 2020 appellants and also the learned counsel appearing for the respondents. 5. The appellants produced a medical certificate issued by a consultant psychiatrist of S.H.Hospital, Thodupuzha, which is relating to treatment of the 1[st] appellant. The reason for the delay set forth by the appellants is on account of the spread of COVID-19 and the lock-down, the appellants were not able to obtain a certified copy of the order in time and entrust with a lawyer to file an appeal in the matter. Yet another reason stated is that the 1[st] appellant, who is coming from a poor circumstances, was suffering from depressive disorder for which he had to undergo treatment in the S.H.Hospital, Thodupuzha. 6. The learned counsel appearing for the appellants would submit that in the light of the medical certificate dated 14.08.2018 the delay is liable to be condoned. The plight of the 1[st] appellant was such that on account of the depressive disorder, which he was suffering from, he was totally unable to attend the court proceedings during the relevant period. 5 Mat.Appeal No.774 of 2020 Therefore, the delay in filing the I.A.694 of 2019 before he Family Court and also the delay occasioned in filing his appeal is liable to be condoned. 7. The learned counsel appearing for the respondents would submit that the 1[st] appellant deserted his wife at a time when she was diagnosed with cancer, to which she ultimately succumbed and the reasons stated for condonation of the delay are totally wrong and insufficient. The reasons stated that the appellants could not approach the lawyer on account of the spread of COVID is devoid of any merit since the impugned order was passed much before the advent of the pandemic. The other reason stated for the delay is further curious. With the support of a medical certificate issued on 14.08.2018, the 1[st] appellant has now claims that he was unable to approach this Court to challenge the impugned order dated 5.11.2019. 8. There is no rule to guide as to when can courts record satisfaction about sufficiency of reason mentioned in Section 5 of the Limitation Act. It is for the court to consider 6 Mat.Appeal No.774 of 2020 in an objective way the materials before it and record its satisfaction or not about the sufficiency of the cause. Even if there have been intervals between the disabling factors, it is for the court to decide whether the person was justified in not approaching the court in time. 9. 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. 10. In **Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649]** the Apex Court while summarizing 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 7 Mat.Appeal No.774 of 2020 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. 11. In **Esha Bhattacharjee** , after summarizing 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 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. 12. This Court in **Rafeek and another v. K.** 8 Mat.Appeal No.774 of 2020 ## **Kamarudeen and another [2021 (4) KHC 34]** observed, '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 : 1987 KHC 911]** 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 : 2013 KHC 4725]** .” 13. After such discussion, the Court in **Rafeek (supra)** held 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 and in an application filed under Section 5 of the Act, the court has to condone the delay if sufficient cause is shown. 14. Here, the appellants filed C.M.Application No.1 of 2020 under Section 5 of the Limitation Act stating the reason that he was unable to attend the court since he was undergoing treatment in the S.H.Hospital, Thodupuzha and 9 Mat.Appeal No.774 of 2020 due to the spread of COVID-19 and related lockdown. A medical certificate dated 14.08.2018 is produced in proof of the treatment. No further details regarding such treatment have been produced before this Court. The same medical ground was the reason stated in support of I.A.No.694 of 2019 also, but it was dismissed by the Family Court finding that the said explanation was unacceptable. Consequently I.A.No.695 of 2019, which was one for setting aside the exparte decree, was also dismissed. It is pertinent to note that thereafter also he did not take necessary diligence and he did not file the appeal in time. The delay is of 338 days. The reasons stated is the same; that he had undergone treatment in S.H.Hospital, Thodupuzha, for depressive disorder. The document produced in order to substantiate that contention is a medical certificate issued on 14.08.2018. It would show that he would be discharged from the hospital after 30 days. If so, that cannot be a reason to condone the delay that occurred after 05.11.2019, the date on which the impugned order was passed. 10 Mat.Appeal No.774 of 2020 15. COVID-19 did not start to impede immediately. In March 2020 only the lockdown started. No explanation for the delay during the period prior to that has been stated. 16. Having considered the whole matter in detail, we are of the view that the reasons stated for the delay by the appellants is totally insufficient. It is obvious that the appellants came forward with I.A.Nos.694 and 695 of 2019 and also this appeal with a view to delay the execution proceedings. The principle that there shall be an endeavour in every litigation to render a decision on merits rather than disposing the matter for default, cannot be applied in this case. There was no diligence on the part of the appellants throughout the proceedings. The respondents are the parents and a sister of the deceased wife of the 1[st] appellant. Unless sufficient reason is shown the delay cannot be condoned, since such a course will result in total injustice to the hapless parents of the deceased wife. Therefore, we hold that this is a case where the delay is not liable to be condoned even on taking the most lenient view. C.M.Appl.No.1 of 2020 is 11 Mat.Appeal No.774 of 2020 accordingly dismissed and consequently the appeal is also dismissed. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** dkr 12 Mat.Appeal No.774 of 2020 **APPENDIX OF MAT.APPEAL 774/2020** **PETITIONER ANNEXURES** **ANNEXURE-1 TRUE COPY OF THE MEDICAL CERTIFICATE OF THE 1ST PETITIONER**