IN THE HIGH COURT OF KERALA AT ERNAKULAM OP(C) No.2780 of 2017 (O)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 19TH DAY OF SEPTEMBER 2017/28TH BHADRA, 1939** **OP(C).No. 2780 of 2017 (O) ---------------------------** **AGAINST THE ORDER/JUDGMENT IN CMA 94/2016 of ADDL. D.C. & SESSIONS COURT - IV, PALAKKAD DATED 4.7.2017 AND THE ORDER/JUDGMENT IN IA NO.714/2015 AND 715/2015 IN OS 256/2012 DATED 19.2.2016 ON THE FILE OF THE PRINCIPAL SUB JUDGE, PALAKKAD** **PETITIONER(S):/APPELLANT/PETITIONER/DEFENDANT** **-------------** **C.RADHAKRISHNAN, AGED 49 YEARS, S/O.CHELLAN, PANDAKKAVIL, CM HOUSE, YAKKARA, PALAKKAD DISTRICT.** **BY ADVS.SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA** ## **RESPONDENT(S):/RESPONDENT/RESPONDENT/PLAINTIFF** **--------------** **SUNDARAN,** **AGED 54 YEARS, S/O.RAMANKUTTY EZHUTHACHAN, THANIYANKAVU PALAKKAL HOUSE, KANNADI P.O., PALAKKAD DISTRICT-678 701.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C).No. 2780 of 2017 (O) ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1- COPY OF THE AFFIDAVIT AND PETITION FILED AS IA.714/2015 AND 715/2015 DATED 05/03/2015.** **EXHIBIT P2- COPY OF THE ORDER IN I.A.714/2015 AND 715/2015 IN OS.256/2012 DATED 19/02/2016 OF THE PRINCIPAL SUB JUDGE, PALAKKAD. EXHIBIT P3- COPY OF THE ORDER IN CMA.94/2016 DATED 04/07/2017 ON THE FILE OF THE DISTRICT COURT, PALAKKAD.** **EXHIBIT P4- COPY OF THE ORDER IN IA.999/16 IN CMA.94/16 DATED 17.10.2016** **RESPONDENT(S)' EXHIBITS** **-----------------------** **NIL** **//TRUE COPY//** **PA TO JUDGE.** jg-5/10 ## **“CR”** ## **ANIL K. NARENDRAN, J. -------------------------------OP(C) No.2780 of 2017 ----------------------------------------Dated this the 19[th] day of September, 2017.** ## **J U D G M E N T** The petitioner, who is the defendant in O.S.No.256/2012 on the file of the Principal Sub Court, Palakkad is before this Court in this Original Petition filed under Article 227 of the Constitution of India, seeking an order to set aside Ext.P2 order of the said court in I.A.Nos.714/2015 and 715/2015 in O.S.No.256/2012 and Ext.P3 order of the District Court, Palakkad in C.M.A.No.94 of 2016. 2. The facts of the case, as borne out from the pleadings and materials on record, would show that O.S.No.256/2012 was one filed by the respondent/plaintiff for return of advance money based on a sale agreement alleged to have been executed by the petitioner/defendant. Despite service of summons, the petitioner/defendant did not appear in court. Accordingly he was set _ex parte_ and an _ex parte_ decree was passed against him on 31.10.2012. 3. The defendant filed I.A.No.715/2015, under Order IX Rule 13 of the Code of Civil Procedure, 1908 for setting aside the OP(C)2780/17 -2- _ex parte_ decree and the said application was accompanied by I.A.No.714/2015, under Section 5 of the Limitation Act, 1963 for condonation of the delay of 764 days in filing I.A.No.715/2015. The said applications were filed on 5.3.2015. 4. By Ext.P2 common order dated 19.2.2016, the Principal Sub Court, Palakkad dismissed those interlocutory applications with cost, on a finding that the delay in filing the application to set aside the _ex parte_ decree is not satisfactorily explained by the defendant and that, no sufficient cause is also shown for his non-appearance in court on 31.3.2015. Ext.P2 order of the Sub Court was under challenge in C.M.A.No.94/2016 filed before the District Court, Palakkad, which ended in dismissal by Ext.P3 order dated 4.7.2017. 5. Challenging Exts.P2 and P3 orders, the petitioner/defendant is before this Court in this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 6. I have heard the learned counsel for the petitioner/ OP(C)2780/17 -3- defendant. 7. On 31.10.2012, the petitioner/defendant was set _ex parte_ in O.S.No.256/2012 and an _ex parte_ decree was also passed against him, since he failed to appear in court, despite service of summons. The said facts are not in dispute. After the _ex parte_ decree, the defendant filed I.A.Nos.715/2015 and 714/2015 before the Sub Court, under Order IX Rule 13 of the Code and Section 5 of the Limitation Act respectively, for setting aside the _ex parte_ decree and for condonation of the delay of 764 days in filing I.A.No.715/2015. The said interlocutory applications dated 5.3.2015 are produced along with this original petition as Ext.P1. 8. The only explanation offered by the defendant in the affidavits filed in support of I.A.Nos.714/2015 and 715/2015 is that, he could not appear in court on 31.10.2012, as he was laid up with chickenpox from 10.10.2012 onwards. Other than the interested testimony of the defendant as PW1 there was nothing before the Sub Court to come to a conclusion that, he was unable OP(C)2780/17 -4- to attend the court on 31.10.2012 and to give instruction to his lawyer. The defendant has not chosen to produce any document or examine any witness to prove the said fact. 9. In the objection filed to I.A.Nos.714/2015 and 715/2015, the respondent/plaintiff contended that no documents are produced by the defendant to show that he was laid up with chickenpox from 10.10.2012 onwards and that, in E.P.No.218/2013 filed for executing the _ex parte_ decree in O.S.No.256/2012 the defendant entered appearance and filed his objections. After one year of filing such objection in E.P.No.218/2013, the defendant filed the interlocutory applications in O.S.No.256/2012 for setting aside the _ex parte_ decree and for condonation of the delay of 764 days. 10. The defendant, who was examined as PW1, has admitted in cross-examination that he entered appearance in E.P.No.218/2013 and filed objection on 31.3.2014. The said material fact was admittedly suppressed in the affidavits filed in support of I.A.Nos.714/2015 and 715/2015. Further, PW1 has OP(C)2780/17 -5- even asserted in cross-examination that he was under treatment for chickenpox for the period from 10.10.2012 upto the filing of the application to set aside the _ex parte_ decree, i.e., up to 5.3.2015. As rightly found in the impugned orders, the defendant could not satisfactorily explain the delay of 764 days in filing the application to set aside the _ex parte_ decree. The defendant could not show sufficient cause for his non appearance in court on 31.3.2015. He had approached the court with I.A.Nos.714/2015 and 715/2015, when the proceedings in E.P.No.218/2013 are about to reach its finality, only to protract the matter. 11. Though, the expression 'sufficient cause' employed by the Legislature in Section 5 of the Limitation Act 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 **Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649]** , lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. The concept of liberal approach has to encapsule OP(C)2780/17 -6- the conception of reasonableness and it cannot be allowed a totally unfettered free play. In the said decision, the Apex Court has also held 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. 12. In the instant case, a reading of the affidavits filed in support of I.A.Nos.714/2015 and 715/2015, which are produced along with this original petition as Ext.P1, would show that, the said affidavits have been drafted in a casual manner harbouring the notion that the courts are required to condone delay and set aside the _ex parte_ decree on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. In addition to this, the fact that the defendant had entered appearance in E.P.No.218/2013 and filed objection on 31.3.2014 is suppressed in the said affidavits. The suppression of such material fact from the notice of the court shows lack of OP(C)2780/17 -7- bona fieds on the part of the defendant in seeking condonation of delay and an order to set aside the _ex parte_ decree passed in O.S.No.256/2012 on 31.10.2012. 13. The petitioner/defendant, who had approached the Sub Court with unclean hands, suppressing material facts from the notice of the said court, when the proceedings in E.P.No.218/2013 are about to reach its finality, does not deserve any sympathy or indulgence of the court. Any leniency shown to such persons would result in giving premium to persons, who committed fraud on the court, since suppression of a material facts from the notice of the court would amount to fraud on the court. 14. In **Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such OP(C)2780/17 -8- a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 15. In **Sobhana Nair K.N. v. Shaji S. G. Nair [2016 (1) KHC 1]** a Division Behch of this Court held that, the law is well settled by a catena of decisions of the Apex Court that, in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principle of law. OP(C)2780/17 -9- 16. A perusal of Exts.P2 and P3 orders passed by the courts below would show that the defendant could not offer any satisfactory explanation for the inordinate delay of 764 days in filing I.A.No.715/2015 under Order IX Rule 13 of the Code to set aside the _ex parte_ decree. Further, he has entered appearance in the Execution Petition, i.e., E.P.No.218/2013, and filed his objection on 31.03.2014. It was only thereafter that the aforesaid interlocutory applications were filed on 05.03.2015. 17. The interlocutory applications filed by the defendant were dismissed with cost by Ext.P2 order of the Sub Court, on a finding that the delay in filing the application to set aside the _ex parte_ decree is not satisfactorily explained and that, no sufficient cause is shown for his non-appearance in court on 31.3.2015. While repelling the the challenge made against Ext.P2 order, the District Court found in Ext.P3 order that the defendant had approached the court with those interlocutory applications, only to protract the matter, when the proceedings in E.P.No.218/2013 are about to reach its finality. The reasoning of the courts below OP(C)2780/17 **==> picture [21 x 9] intentionally omitted <==** in Exts.P2 and P3 orders are neither arbitrary nor illegal. 18. Viewed in the light of the law laid down in the decisions referred to supra, I find absolutely no ground to interfere with Exts.P2 and P3 orders passed by the courts below. In the result, this original petition fails, and the same is accordingly, dismissed. **(ANIL K.NARENDRAN, JUDGE)** jg-20/9