Hari Govind K.G. v. Preetha V

# **`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 8[TH] DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944 ``` ``` MAT.APPEAL NO. 664 OF 2022 ``` ``` AGAINST THE COMMON ORDER DATED 05.01.2022 IN I.A.NO.1058 OF 2020 AND I.A.NO.1059 OF 2020 IN O.P.(OTHERS)NO.619 OF 2017 OF FAMILY COURT, KOTTARAKKARA ``` ## **`APPELLANT:`** ``` HARI GOVIND K.G. AGED 48 YEARS KESAVATHU MADOM VEEDU, AYANITHEKKU MURI, AYANIVELIKULANGARA, SV MARKET P.O., KOLLAM, PIN - 690573 BY ADVS. B.ASHOK SHENOY C.G.PREETHA P.S.GIREESH ARJUN R NAIK THEJALAKSHMI R.S. ``` ## **`RESPONDENT:`** ``` PREETHA V AGED 44 YEARS AISWARYA MADOM VEEDU, NADUTHERI MURI, THALAVUR VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT., PIN - 689695 BY ADVS. P.M.SANEER SHAJIN S.HAMEED ``` ``` THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 08.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Mat.Appeal No.664 of 2022 ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellant is the respondent in O.P.(Others)No.619 of 2017 on the file of the Family Court, Kottarakkara, which was one filed by the respondent herein-wife, seeking a decree for return of 18 sovereigns of gold ornaments or its value of Rs.3,96,000/-, for realisation of Rs.1,90,000/- being the money alleged to have been obtained by the appellant and his mother and sister on several occasions and Rs.2,00,000/- as compensation. That original petition was decreed ex-parte on 15.12.2017. The appellant filed I.A.No.1058 of 2020, an application under Order IX Rule 13 of Code of Civil Procedure, 1908, seeking an order to set aside the ex-parte decree dated 15.12.2017 in O.P.(Others)No.619 of 2017. The said application was accompanied by I.A.No.1059 of 2020, under Section 5 of the Limitation Act, 1963, for condonation of delay of 1073 days in filing I.A.No.1058 of 2020. Those applications ended in dismissal by a common order dated 05.01.2022 of the Family Court, Kottarakkara. Feeling aggrieved by the aforesaid order, the appellant is before this Court in this appeal, invoking the provisions under Section 19(1) of the Family Courts Act, 1984, along with an application to condone the delay 3 Mat.Appeal No.664 of 2022 of 66 days in filing the appeal. 2. On 19.09.2022, when this appeal came up for admission, this Court issued consolidated notice to the respondent by speed post, returnable within four weeks. By the order dated 10.11.2022, C.M.Application No.1 of 2022 was allowed by condoning the delay of 66 days in filing the appeal. 3. On 18.11.2022, when this appeal came up for admission, both parties were referred for mediation before the Mediation Sub Centre, Kottarakkara, on 01.12.2022 at 11.00 a.m., in order to explore the possibility of settlement. 4. Today, when the matter is taken up for consideration, it is reported by the learned counsel on both sides that the matter could not be settled in mediation. The report dated 30.12.2022 of the Mediation Sub Centre is placed on record. 5. Heard the learned counsel for the appellant-husband and the learned counsel for the respondent-wife. 6. The issue that arises for consideration in this appeal is as to whether any interference is warranted on the common order dated 05.01.2022 of the Family Court, Kottarakkara in I.A.No.1058 of 2020 and I.A.No.1059 of 2020, whereby those interlocutory applications stand dismissed. 7. As discernible from the impugned order, though the 4 Mat.Appeal No.664 of 2022 Family Court granted several opportunities to the appellanthusband to adduce evidence to show sufficient cause for condonation of delay of 1073 days in filing I.A.No.1058 of 2020, an application under Order IX Rule 13 of Code of Civil Procedure, 1908, seeking an order to set aside the ex-parte decree dated 15.12.2017 in O.P.(Others)No.619 of 2017, the appellant failed to adduce evidence. 8. According to the appellant, he could not appear before the Family Court since both of his parents, who are very old, are having ailments. With their lost eyesight, both of them are unable to do their daily chores or move out without assistance. The appellant is the only person available to look after them. Therefore, he could not appear before the Family Court in O.P.(Others)No.619 of 2017. On coming to know about the ex-parte decree, the appellant filed I.A.No.1058 of 2020 and I.A.No.1059 of 2020 in O.P.(Others)No.619 of 2017. 9. The learned counsel for the respondent-wife would submit that the ex-parte decree of the Family Court is of the year 2017. The learned counsel would point out that the appellanthusband has not even paid the monthly maintenance granted to the respondent-wife and minor child, by the order of the Family Court in M.C.No.139 of 2017. 5 Mat.Appeal No.664 of 2022 10. The learned counsel for the appellant would submit that the ex-parte order passed by the Family Court in M.C.No.139 of 2017 is under challenge in R.P.(FC)No.329 of 2022, pending before this Court. 11. The Limitation Act, 1963 was enacted by the Parliament 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. 12. 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 6 Mat.Appeal No.664 of 2022 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 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. 13. 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. 14. 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 7 Mat.Appeal No.664 of 2022 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 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 8 Mat.Appeal No.664 of 2022 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 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. 9 Mat.Appeal No.664 of 2022 21.13 The State or a public body or an entity representing a collective cause should be given some acceptable latitude.” 15. 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 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. 10 Mat.Appeal No.664 of 2022 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.” 16. 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 11 Mat.Appeal No.664 of 2022 for condonation of delay should be drafted with careful concern and no court shall deal with such an application in a routine manner. 17. As already noticed hereinbefore, though the Family Court granted several opportunities to the appellant-husband to adduce evidence to show sufficient cause for condonation of delay of 1073 days in filing I.A.No.1058 of 2020, the appellant failed to adduce evidence. In view of the law laid down in the decisions referred to supra, inordinate delay, which attracts the doctrine of prejudice, warrants a strict approach. 18. The learned counsel for the appellant-husband would submit that, a lenient view may be taken, since the appellant is the only person available to look after his aged parents, who are having ailments, with their lost eyesight. The appellant may be granted an opportunity to contest O.P.(Others)No.619 of 2017, on payment of costs to the respondent-wife. The appellant is even prepared to pay a portion of the maintenance amount granted to the respondent-wife and minor child, by the order of the Family Court in M.C.No.139 of 2017. 19. The learned counsel for the respondent-wife would submit that, the respondent-wife may be permitted to withdraw from the Family Court, the amount deposited by the appellant- 12 Mat.Appeal No.664 of 2022 husband in terms of the orders of this Court in this Mat. Appeal. 20. Having considered the submissions made by the learned counsel on both sides, we deem it appropriate to allow this appeal, on payment of a cost of **Rs.50,000/-** by the appellant-husband to the respondent-wife, which shall be deposited before the Family Court, Kottarakkara in O.P.(others) No.619 of 2017, within a period of one month from the date of receipt of a certified copy of this judgment. On such a deposit being made, the respondent-wife shall be permitted to withdraw the said amount. On such deposit of Rs.50,000/- being made, within the time limit stipulated above, a sum of Rs.10,000/- shall be adjusted towards the cost for condonation of the delay of 1073 days in filing I.A.No.1058 of 2020 in O.P.(others)No.619 of 2017. The balance amount of Rs.40,000/- shall be adjusted towards arrears of maintenance in M.C.No.139 of 2017. On such deposit of Rs.50,000/- being made, within the time limit stipulated above, the Family Court, Kottarakkara, shall allow I.A.Nos.1058 of 2020 and 1059 of 2020 in O.P.(others)No.619 of 2017. Failing which, the common order dated 05.01.2022 of the Family Court, Kottarakkara, dismissing I.A.Nos.1058 of 2020 and 1059 of 2020 in O.P.(others)No.619 of 2017, will stand confirmed. In case I.A.Nos.1058 of 2020 and 1059 of 2020 in 13 Mat.Appeal No.664 of 2022 O.P.(others)No.619 of 2017 are allowed on payment of costs as directed above, the Family Court shall finally dispose of O.P.(others)No.619 of 2017, as expeditiously as possible, at any rate, within a further period of four months. Sd/- **ANIL K. NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** **yd**