K V Kumar Ajith v. Aarcha

## **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 18[TH] DAY OF JANUARY 2023 / 28TH POUSHA, 1944 MAT.APPEAL NO. 676 OF 2022 AGAINST THE ORDERS DATED 06.07.2022 IN I.A NO.1585 OF 2022 AND I.A.NO.1586 OF 2022 IN O.P.NO.46 OF 2013 OF FAMILY** **COURT,ERNAKULAM** ## **APPELLANT/PETITIONER/RESPONDENT:** **K V KUMAR AJITH AGED 59 YEARS S/O.VELAPPAN, RESIDING AT KUPPUKULANGARA HOUSE, KOOVAPPADAM, KOCHI,ERNAKULAM DISTRICT, PIN - 682002** **BY ADV. V.VISAL AJAYAN** **RESPONDENTS:** **AARCHA AGED 24 YEARS D/O.K. V. KUMAR AJITH CURRENTLY RESIDING IN MALLUPARAMBIL HOUSE, ERNAKULAM DISTRICT PIN - 682016** **BY ADVS. R.UMASANKAR R.RAMESH(R-771)** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL** **HEARING ON 23.12.2023, THE COURT ON 18.01.2023 DELIVERED THE FOLLOWING:** 2 Mat.Appeal No.676 of 2022 ## **J U D G M E N T** ## P.G.Ajithkumar, J. The orders of the Family Court, Ernakulam dated 06.07.2022 in I.A.Nos.1585 of 2022 and 1586 of 2022 in O.P No.46 of 2013 are under challenge in this appeal filed under Section 19(1) of the Family Courts Act, 1984. 2. There was a delay of 16 days in filing this appeal. As per the order in C.M.Application No.1 of 2022, the delay was condoned. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 3. The respondent is the daughter of the appellant. The respondent filed O.P No.46 of 2013 claiming maintenance and Rs.20 lakhs towards her educational and marriage expenses. The appellant remained ex parte and accordingly, a decree was passed on 21.01.2017. The appellant filed I.A.No.1585 of 2022 under Section 5 of the Limitation Act, 1963 for condonation of delay of 1485 days in filing I.A No.1586 of 2022 which was one for setting aside ex parte decree dated 21.01.2017. The respondent filed counter 3 Mat.Appeal No.676 of 2022 statements to both those interlocutory applications. The Family Court considered those applications together and as per the order dated 06.07.2022, dismissed both those applications. 4. Reasons stated for the delay are that the brother of the appellant fell ill during 2017 suffering from Lymphoma and had to undergo prolonged treatment. His step daughter Ms.Shobitha K.S also fell ill suffering from Adenocarcinoma. The appellant had to look after their affairs and eventually both of them expired. When he tried to enquire about the case, he came to know that his Lawyer expired on 11.04.2018. He thereafter approached the respondent who assured that no steps for execution of the decree would be taken. But he later received notice in EP No.82 of 2018 and then only he could file the petition for setting aside the ex parte decree. 5. The respondent who is none other than the daughter of the appellant took the stand that she was never approached by the appellant, nor did she assure him not to execute the decree. She also contended that there was no 4 Mat.Appeal No.676 of 2022 requirement for the appellant to take care of his brother since his wife and other relatives were capable enough to look after him. The respondent also contended that the appellant was in fact leading a luxurious life and there was absolutely no reason preventing him from appearing before the Court. 6. The delay is 1485 days. Considering the relationship between the parties and the situations in which they were placed, it has to be said that the delay is inordinate. This is not a case where the appellant did not know about the case. He entered appearance through his counsel, but later absented from appearing before the Court. It is also the contention of the appellant that he enquired about the case, but he was not able to get information since his Lawyer died on 11.04.2018. From the averments of the appellant, it is seen that his brother and step daughter were under treatment during 2017-18 period. It was explained that the appellant wanted to attend to the affairs of his ailing brother and step daughter, and he was unable to appear before the Court. His brother and step daughter expired in 2018. The reason why he waited till 18.03.2022 to file I.A 5 Mat.Appeal No.676 of 2022 Nos.1585 of 2022 and 1586 of 2022 is not explained. The obvious reason for filling the present applications is that he received notice in the execution petition. It would show that the appellant was not at all diligent in enquiring about the proceedings in O.P No.46 of 2013. 7. 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 lifepurpose for the existence of the institution of Courts. 8. 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 6 Mat.Appeal No.676 of 2022 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. 7 Mat.Appeal No.676 of 2022 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 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 8 Mat.Appeal No.676 of 2022 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] ## 9. In **Rafeek and another v. K. Kamarudeen and** **another [2021 (4) KHC 34]** a Division Bench of this Court 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 9 Mat.Appeal No.676 of 2022 for a liberal delineation. 10. When the delay is inordinate, and the explanations given for the delay are not satisfactory, the Court cannot condone the delay on the premises that the decision in every case shall be on merits. In the circumstances of this case, the prejudice that may be caused to the respondent also assumes importance. The decree was obtained by the respondent on 21.01.2017. She filed an Execution Petition in 2018. When the property of the appellant was about to be sold in the execution proceedings only he had filed the said interlocutory applications. By such a long lapse of time, the position of the respondent who was allowed to realise money from the appellant - father towards her education and marriage expenses has become precarious. Any further delay would naturally cause serious prejudice to the respondent. When the said circumstances are viewed in the light of the law laid down by the Apex Court and this Court in the aforesaid decisions, we are of the view that the reason shown by the appellant to condone the delay of 1485 days is not sufficient. Therefore the orders of the Family Court dismissing I.A. Nos.1585 of 10 Mat.Appeal No.676 of 2022 2022 and 1586 of 2022 are not liable to be interfered with. The appeal is therefore dismissed. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** PV