J. Parvathi Ammal v. R. Selvaraj

## **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 19[TH] DAY OF SEPTEMBER 2022 / 28TH BHADRA, 1944** **FAO NO. 88 OF 2022** **AGAINST THE ORDER DATED 29.03.2022 IN I.A.NO.394 OF 2021 IN O.S.NO.1289 OF 2011 ON THE FILE OF THE ADDITIONAL SUB COURT -I,THIRUVANANTHAPURAM** ## **APPELLANT/PETITIONER/PLAINTIFF:** **J.PARVATHI AMMAL AGED 50 YEARS D/O.JANARDHANAN IYER, TC NO. 40/422(1), PUTHEN STREET, MUTTATHARA VILLAGE, MANACAUD P.O., THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT (PRESENTLY RESIDING AT FLAT NO.1005, B BLOCK, HOYSALA, SAMRUDDHI APARTMENT, THALA KAVERI LAYOUT, BYTRANYAPURA, AMRUTHA HALLI, BANGALURU, PIN-560 092). BY ADVS. V.N.SANKARJEE V.N.MADHUSUDANAN R.UDAYA JYOTHI M.M.VINOD M.SUSEELA KEERTHI B. CHANDRAN VIJAYAN PILLAI P.K. C.PURUSHOTHAMAN NAIR NITHEESH.M SUKANYA S.** ## **RESPONDENT/COUNTER PETITIONER/DEFENDANT:** **R.SELVARAJ S/O.RAMASWAMY NADAR, AGED 66, TC 17/593, CHOTTUPURA STREET, VANCHIYOOR VILLAGE, FORT P.O., THIRUVANANTHAPURAM DISTRICT, PIN-695 035. BY ADVS.** **N.KRISHNA PRASAD BHARATH MOHAN(K/1392/2020)** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 29.08.2022, THE COURT ON 19.09.2022 DELIVERED THE FOLLOWING:** 2 F.A.O.No.88 of 2022 ## **J U D G M E N T** ## Ajithkumar, J This appeal was filed under order XLIII Rule 1(c) of Code of Civil Procedure, 1908. The appellant challenges order dated 29.03.2022 in I.A No.394 of 2021 in O.S No.1289 of 2011 on the file of the Additional Sub Court-I, Thiruvananthapuram. I.A No.394 of 2021 was filed by the appellant seeking to condone the delay of 2109 days and restore O.S No.1289 of 2011 which was dismissed on 30.11.2015 for default. 2. This appeal was admitted on 20.07.2022. Pursuant to notice, the respondent entered appearance through his learned Counsel. 3. Heard the learned Counsel appearing for the appellant and also the learned Counsel appearing for the respondent. 4. The appellant filed O.S No.1289 of 2011 seeking to set aside a sale deed and a decree of injunction. The respondent filed a written statement. Issues were framed. When the suit was posted for payment of the balance court 3 ## F.A.O.No.88 of 2022 fees, the appellant failed. Therefore the suit was dismissed for default on 30.11.2015. The appellant filed I.A no.394 of 2021 contending that although she entrusted Rs.30,000/with his Counsel for making payment of the balance court fees and also to meet other expenses, there occurred failure to make payment of the balance court fees since her lawyer died. The appellant has been residing in Bangalore. When she reached the office of the Counsel on 20.08.2021 only she could know the death of her Counsel and non-payment of the court fees resulting in the dismissal of the suit. She contending that there was no negligence or laches on her part and there is enough reason to condone the delay, filed I.A No.394 of 2021. 5. Respondent resisted the application by contending that the reasons stated for the delay are absolutely false. He would contend that after dismissal of the suit on 30.11.2015, the appellant has filed many petitions before the Rent Control Court and the Execution Court in relation to the dispute with respect to the same building. She has been very much available in station. She stated falsely that only 4 F.A.O.No.88 of 2022 on 20.08.2021, she could know death of his Counsel. In fact, she approached this Court and obtained an order for expeditious disposal of O.S.No.1289 of 2011 and it was thereafter she failed to make payment of the court fees. Only on account of the negligence and laches on her part, the suit happened to be dismissed. Accordingly the respondent sought to dismiss I.A No.394 of 2021. 6. The learned Counsel appearing for the appellant would contend that there was no fault on the part of the appellant and the learned Sub Judge ought to have allowed I.A. No.394 of 2021 taking note of the well settled principle that every suit shall be adjudicated on merits. The learned Counsel further would point out that the Apex Court as per order dated 23.03.2020 and the subsequent orders excluded the periods of delay from 15.03.2020 taking into account the spread of Covid-19 and the court below should have allowed I.A.No.394 of 2021 taking that also into account. There is nothing on record to show that the cause shown by the appellant is smacked by bonafides and as such, the application should not have been dismissed. In fact, the suit 5 ## F.A.O.No.88 of 2022 was taken off the file for non payment of court fees which is under order VII Rule 11 (c) of the Code and as such, the dismissal of the suit for default is illegal and on that score also the impugned order is sought to be set aside. 7. The learned Counsel for the respondent on the other hand would submit that the court below narrated the true facts which reveal that the appellant was fully aware of the dismissal of the suit and therefore there is no merit in the contentions of the appellant. It is pointed out that the appellant has filed E.A Nos.530, 531 and 532 of 2016 before the Execution Court where the respondent filed E.P No.55 of 2013 seeking enforcement of the order of eviction in R.C.P No.55 of 2010. The appellant filed those petitions before the Execution Court much after dismissal of the suit on 30.11.2015 and that would show that the reasons stated by her are false. 8. There is a delay of 2109 days in filing I.A No.394 of 2021. It is stated that the suit was dismissed for default but the reason was the non payment of balance court fees due on the plaint. Even if the word dismissal has been used, 6 ## F.A.O.No.88 of 2022 the order is one under order VII Rule 11(c) of the Code. It is an order of rejection amounting to a deemed decree in view of the definition of the decree contained in S.2(2) of the Code. Therefore an application for restoration of the suit is technically not maintainable. 9. The sole reason stated for condonation of the delay of 2109 days is that the appellant did not know the death of her counsel till she visited the office of the counsel on 20.08.2021. The suit was dismissed on 30.11.2015. It is quite unbelievable that ever after 30.11.2015, the appellant did not try to contact her Counsel. Of course, it is stated that the appellant was residing in Bangalore and it was not possible for her to come down to Thiruvananthapuram frequently to enquire about the progress of the suit. Such a contention is hardly believable. In order to enquire about the suit, she need not have physically come to Thiruvananthapuram. The information could be gathered over phone, which is the normal mode of present day communication. In that context, the fact that the appellant field E.A Nos.530, 531 and 532 of 2016 in E.P No.55 of 7 F.A.O.No.88 of 2022 2013, before the Execution Court situated at Thiruvananthapuram tells upon the credibility of the appellant’s case. There is no explanation from the appellant as to how she could file those petitions in July 2016 without coming to Thiruvananthapuram. When she was hotly contesting E.P No. 55 of 2013, it is difficult to believe her claim that she could not enquire about O.S. No.1289 of 2011 either from the Court or from her Counsel. Taking those matters into account, the reasons stated by the appellant for the delay of 2109 days is not believable. 10. 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 8 F.A.O.No.88 of 2022 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. 11. 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 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 9 F.A.O.No.88 of 2022 circumstances that led to the delay. 12. 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. 13. 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 10 F.A.O.No.88 of 2022 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, justice-oriented, 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 factsituation. 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 11 F.A.O.No.88 of 2022 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 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 12 ## F.A.O.No.88 of 2022 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] ## 14. In **Rafeek and another v. K. Kamarudeen and** **another [2021 (4) KHC 34]** 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 13 ## F.A.O.No.88 of 2022 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. 15. In the light of the law laid down in the aforesaid decisions, if the delay is inordinate, the same is required to be explained satisfactorily. Here the appellant did not choose to adduce any evidence regarding the reason for the inordinate delay of 2109 days. The reasons stated are not reasonable taking the facts pointed out above into consideration. 17. In such circumstances, the view taken by the court below that there was no sufficient reason to condone 14 ## F.A.O.No.88 of 2022 the delay or to set aside the dismissal of the suit for default on 30.11.2015 cannot be said to be incorrect. We find no reason to interfere with the said order. Hence this appeal is liable only to be dismissed. In the result, this appeal is dismissed. No Costs. **Sd/ANIL K.NARENDRAN JUDGE** **Sd/-** **P.G. AJITHKUMAR JUDGE** PV