Jincy Jinu alias Asha Jine v. Nisha

**A.HARIPRASAD & P.V.KUNHIKRISHNAN, JJ. ----------------------------------------------------F.A.O. No.18 of 2019 ----------------------------------------------------Dated this the 3[rd] day of February, 2021** ## **J U D G M E N T** ## **KUNHIKRISHNAN, J** This appeal is filed challenging the order dated 9.10.2018 in I.A.No.103 of 2016 in O.S No.28 of 2010 on the file of Sub Court, Cherthala. The above interlocutory application was filed by the appellant, who is the defendant in O.S No.28 of 2010, to set aside the ex parte decree dated 13.8.2010 passed in the above suit, after condoning the delay of 1958 days in filing the said petition. 2. The brief facts are like this: The respondent/plaintiff filed O.S.No.28 of 2010 against the appellant for realisation of money. The suit was decreed ex parte on 13.8.2010. Subsequently, E.P No.136 of 2012 was filed F.A.O. No.18 of 2019 2 by the respondent herein on 12.10.2012 to execute the decree. According to the appellant/defendant, her husband was working abroad. They engaged Advocate Thomas Joseph for defending the case. There was no positive information from the side of the Advocate about the proceedings in the suit. According to the appellant, she and her husband were under the bonafide belief that the Advocate would prosecute the case properly. When the Execution Petition was posted for sale of the property, the appellant came to know about the ex parte decree, and accordingly, the present petition was filed to set aside the ex parte decree. There is a delay of 1958 days in filing the petition to set aside the decree. According to the appellant/plaintiff, the delay is not due to the laches on her part. Hence she prayed for setting aside the decree after condoning the delay. 3. The respondent/plaintiff filed a counter affidavit disputing the contents of the above petition. The respondent contended F.A.O. No.18 of 2019 3 that the petition is filed after a lapse of more than five years from the date of the decree. The respondent contended that the irresponsibility of the counsel is not a ground to set aside the decree. The respondent submitted that on 8.4.2010, Advocate Thomas Joseph appeared for the appellant and sought time for filing the written statement in the suit. Since the appellant did not file the written statement on two posting dates, the suit was decreed on 13.8.2010. On 12.10.2012 respondent filed E.P.No.136 of 2012. In the Execution Petition also, the appellant appeared through the very same counsel. The respondent submitted that Advocate Thomas Joseph appeared for the appellant in E.P for more than 15 postings. According to the respondent, there is no explanation as to why the appellant did not enquire about the case for more than five years. The respondent submitted that there is willful laches on the part of the appellant in conducting the case. F.A.O. No.18 of 2019 4 4. To substantiate the case, PW1 and PW2 were examined on the side of the appellant. No evidence was adduced from the side of the respondent. Ext C1 was also marked. After going through the evidence and documents, the lower Court dismissed the petition. Aggrieved by the above, this appeal is filed. 5. Heard the counsel for the appellant and the respondent. 6. The counsel for the appellant submitted that this is a case in which the Advocate who appeared for the appellant before the lower Court gave evidence before the Court conceding that he committed a mistake. The counsel submitted that even though there is more than five years of delay in filing the petition, the word "sufficient cause" under Section 5 of the Limitation Act should be given a liberal construction to advance substantial justice. According to the counsel, in every case of delay, there will be some lapse on the part of the litigant concerned. That F.A.O. No.18 of 2019 5 alone is not enough to turn down his plea and shut the door against him. The counsel relied the judgment of the apex court in . **N.Balakrishnan v M. Krishnamurthy (1998 KHC 1163)** According to the counsel, in the light of the evidence of PW1 and PW2, sufficient cause to condone the delay is established by the appellant/plaintiff. The counsel submitted that the petition to set aside the ex parte decree may be allowed on any terms. 7. The counsel for the respondent submitted that there is absolutely no explanation for condoning the huge delay in filing the petition to set aside ex parte decree. The counsel submitted that the suit was decreed on 13.8.2010 and the Execution Petition was filed only on 4.2.2016. The counsel submitted that the judgment debtor had received Order 21 Rule 22 C.P.C notice in the execution petition on 31.3.2013. He also submitted that the judgment debtor received Order 21 Rule 66 C.P.C notice on 25.7.2013. According to the counsel, PW1 suppressed the receipt of Rule 22 and Rule 66 F.A.O. No.18 of 2019 6 notices in the Petition filed under O IX R 13 CPC. The counsel submitted that the delay in filing the petition to set aside ex parte decree is not at all explained by the appellant and there is no bonafides in the petition filed by the appellant to set aside the ex parte decree. According to the counsel, in the Execution Petition, the sale was conducted, and the property was purchased by the decree holder. It is also submitted that the sale is also confirmed. At this distance of time, this Court may not interfere with the impugned order in this appeal, is the submission of the counsel. ## 8. For the proper disposal of this appeal, the following dates ## are important. |1|Judgment and decree in<br>O.S.No. 28 of 2010|13/8/2010| |---|---|---| |2|E.P.136 of 2012 filed|12/10/12| |3|Order 21 Rule 22 CPC notice|31/01/2013| F.A.O. No.18 of 2019 7 ||received by JD|| |---|---|---| |4|The JD appeared in the<br>Execution Petition|12/02/13| |5|Order 21 Rule 66 notice<br>received by JD|25/7/2013| |6|The petition under Order IX<br>Rule 13 CPC|22/1/2016| |7|The order passed in the<br>petition filed under Order IX<br>Rule 13 CPC|09/10/18| 9. Admittedly, in the Execution Petition, the sale was ordered and the decree holder, who is the respondent herein, purchased the property. The sale is also confirmed. The order impugned in this appeal was passed in a petition to set aside the ex parte decree along with a prayer to condone the delay of 1958 days in filing the said petition. We perused the petition filed by the appellant along with the evidence adduced by the appellant/plaintiff. A reading of the evidence of PW1, who is the F.A.O. No.18 of 2019 8 appellant herein, it is clear that she shift the entire responsibility for the delay in filing the petition to set aside the decree on PW2, the Advocate, who appeared for her in the suit and in the Execution Petition. We perused the evidence of PW2. PW2 indeed accepted the responsibility for the delay in filing the petition. But we cannot believe the evidence of PW2 in toto. From the evidence, it is clear that PW2 is a lawyer having good practice. This Court can't accept the evidence of PW2 to the effect that, when an ex parte decree was passed by the Court below, on 13.8.2010, he did not inform the same to his client till 2016 especially when he himself, admittedly appeared in the Execution Petition also for the appellant. Simply because a lawyer gave evidence before the Court, we cannot accept his case in toto. The lawyers are indeed the officers of the Court. But when they give evidence before the Court of law as a witness, this Court can treat the lawyer only as a witness and not an officer of the Court. F.A.O. No.18 of 2019 9 When a lawyer represents his client in a Court of law, the Court can believe the words of the lawyer because he is an officer of the Court. But when the lawyer is giving evidence as a witness, the court should appreciate his evidence just like any other witness. In this case, admittedly ex parte decree was passed on 13.8.2010. A notice was received by the appellant in the Execution Petition as evident by the endorsement in Ext C1. Ext C1 was entrusted to PW2, the lawyer by PW1 through another person. It is also an admitted case that PW2, the lawyer, appeared for the appellant in the Execution Petition continuously for about 15 postings. A perusal of the evidence of PW2 the lawyer, it is clear that there is no serious objections to these admitted facts. When a lawyer appeared for his client in an Execution Petition continuously for about 15 postings, this Court cannot accept the case of the appellant that she was not aware of the ex parte decree based on which the above Execution F.A.O. No.18 of 2019 10 Petition was filed. We do not want to make any observation about the conduct of the lawyer in this case. We leave it there. But this is not a fit case in which this Court can condone the delay of five years and five months to set aside an ex parte decree. 10. The counsel for the appellant relied the judgment of the Apex Court in _**N.Balakrishnan**_ ’s case (supra). The relevant portion of the above judgment is extracted hereunder: 9. It is axiomatic that condonation of delay is a matter of discretion of the Court. S.5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior Court would be free to consider the cause shown for the F.A.O. No.18 of 2019 11 delay afresh and it is open to such superior Court to come to its own finding even untrammeled by the conclusion of the lower Court. 10. The reason for such a different stance is thus :The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. 11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. F.A.O. No.18 of 2019 12 12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. This Court has held that the words "sufficient cause" under S.5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575 and State of West Bengal v. The Administrator, Howrah Municipality, AIR 1972 SC 749. 13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant the Court shall compensate the opposite party for his loss. 14. In this case explanation for the delay set up by the appellant was found satisfactory to the Trial Court in the exercise of its discretion and the High Court went wrong in upsetting the finding, more so when the High Court was exercising revisional jurisdiction. Nonetheless, the respondent must be compensated F.A.O. No.18 of 2019 13 particularly because the appellant has secured a sum of Rs. Fifty thousand from the delinquent Advocate through the Consumer Disputes Redressal Forum. We, therefore, allow these appeals and set aside the impugned order by restoring the order passed by the Trial Court but on a condition that appellant shall pay a sum of Rupees Ten thousand to the respondent (or deposit it in this Court) within one month from this date. 11. After going through the above judgment, we are more convinced that the present case is not a fit case in which the delay of more than 5 years in filing the petition to set aside the ex parte decree can be allowed. Of course, the rule of litigation is not meant to destroy the right of parties. But the Supreme Court also observed that when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the Court should lean against acceptance of the explanation. The Apex Court observed that while condoning the delay, the Court should not forget the opposite party altogether. It is stated F.A.O. No.18 of 2019 14 by the Apex Court that it must be born in mind that he is a loser and he too would have incurred quite large litigation expenses. 12. Considering the entire facts and circumstances of this case, we are of the firm view that there is no illegality in the impugned order by which the lower Court dismissed the petition filed by the appellant under Order IX Rule 13 Civil Procedure Code. Therefore, this appeal is dismissed. No cost. **A. HARIPRASAD,** **JUDGE.** **P.V.KUNHIKRISHNAN, JUDGE** cms ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **&** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 03RD DAY OF FEBRUARY 2021 / 14TH MAGHA,1942** ## **FAO.No.18 OF 2019** **AGAINST THE ORDER IN OS 28/2010 OF SUB COURT, CHERTHALA** ## **APPELLANT:** **JINCY JINU ALIAS ASHA JINE,** **AGED 35 YEARS** **W/O.JINU, PALLATH HOUSE, NORTH KALAMASSERY.P.O., EDAPPALLY VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **BY ADVS.** **DR.V.N.SANKARJEE** **SRI.V.N.MADHUSUDANAN** **SRI.S.SIDHARDHAN** **SMT.R.UDAYA JYOTHI** **SRI.M.M.VINOD** **SMT.M.SUSEELA** **SRI.SUDHAKARAN V.** **SMT.ARYA BALACHANDRAN** **SMT. KEERTHI B. CHANDRAN** F.A.O. No.18 of 2019 16 ## **RESPONDENT:** ## **NISHA,** **AGED 33 YEARS** **W/O.JIBIN, PUNNAKKAL HOUSE, THANNEERMUKKOM, NORTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT-688527.** **R1 BY ADV. SRI.P.B.KRISHNAN** **R1 BY ADV. SRI.P.M.NEELAKANDAN R1 BY ADV. SRI.P.B.SUBRAMANYAN R1 BY ADV. SRI.SABU GEORGE R1 BY ADV. SRI.MANU VYASAN PETER** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 2101-2021, THE COURT ON 03-02-2021 DELIVERED THE FOLLOWING:**