K.K. Jyothidarshan v. Vannakandy Anil

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 2[ND] DAY OF JUNE 2023 / 12TH JYAISHTA, 1945** **F.A.O. NO. 20 OF 2023** **AGAINST THE ORDER DATED 05.02.2022 IN I.A.NOS.1 AND 2 OF 2021 IN O.S.NO.97 OF 2014 OF THE PRINCIPAL SUB COURT,** ## **THALASSERY** ## **APPELLANT/PETITIONER/DEFENDANT:** **K.K. JYOTHIDARSHAN, AGED 50 YEARS, S/O K.K.BHARATHAN, BUSINESS, RESIDING AT CHAITHANYA, KOOTHUPARAMBA AMSOM NARAVOOR DESOM P.O.KOOTHUPARAMBA, KANNUR, PIN – 670643.** **BY ADVS. U.P.BALAKRISHNAN E.MOHAMMED SHAFI** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** ## **VANNAKANDY ANIL** **AGED 56 YEARS, S/O ACHUTHAN, EMPLOYED IN GULF, CHANDRA, KOLARI AMSOM, KALLUR DESOM, MATTANNUR P.O. IRITTY TALUK, KANNUR, PIN – 670703.** **BY ADVS.** **M.K.SUMOD MUNDACHALIL KOTTIETH VIDYA M.K.** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 29.05.2023, THE COURT ON 02.06.2023 DELIVERED THE FOLLOWING:** 2 F.A.O.No.20 of 2023 ## **JUDGMENT** ## P.G. Ajithkumar, J. This is an appeal filed under Section 104 and Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908. The appellant is the judgment debtor in O.S.No.97 of 2014 on the file of the Sub Court, Thalassery. The respondent filed the said suit for return of advance sale consideration. An exparte decree was passed in that suit on 06.08.2016. The appellant filed I.A.No.2 of 2021 seeking to set aside the exparte decree. He also filed I.A.No.1 of 2021 under Section 5 of the Limitation Act, 1963 for condonation of delay in filing the former application. There was a delay of 1652 days. The Sub Court after hearing both sides held that there was no sufficient reason to condone the delay and accordingly dismissed I.A.No.1 of 2021. Consequently, I.A.No.2 of 2021 was also dismissed. The appellant assails the said orders in this appeal. 2. There was a delay of 299 days in filing this appeal. 290 days was sought to be excluded under Section 14 of the Limitation Act, 1963 for the reason that the appellant filed 3 F.A.O.No.20 of 2023 C.M.Appeal No.5 of 2022 before the District Court, Thalassery, which was returned for re-presentation before the proper court on the ground of pecuniary jurisdiction. There occurred a delay of 9 days thereafter in filing this appeal which is sought to be condoned under Section 5 of the Limitation Act. As per the order dated 05.04.2023 in C.M.Appl.No.1 of 2023, 9 days delay in filing the appeal was condoned and 290 days was excluded. 3. In the light of the request of the learned counsel appearing on either side the matter was referred for mediation. But the attempt for an amicable settlement was not fruitful. 4. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 5. The learned counsel appearing for the appellant would submit that the learned Sub Judge did not consider the whole aspects of the matter and that resulted in a wrong conclusion while deciding I.A.No.1 of 2022. The fact that the appellant paid an amount of Rs.1 lakh in E.P.No.68 of 2017 4 F.A.O.No.20 of 2023 was for saving his property from being sold and that was misinterpreted by the court below. The appellant had filed a written statement in the suit raising tenable contentions. Only because he was unable to appear before the court for valid reason, an exparte decree happened to be passed. The facts of the case are such that the appellant should be given an opportunity to contest it on merits. Therefore a technical approach should not have been resorted to by the court below. In fact, the delay was only 1287 days, once period after 15.03.2020, which was excluded in the wake of spread of COVID-19, by the Apex Court **In Re:Cognizance for Extension of Limitation [(2022) 3 SCC 117]** is deducted. That was also not reckoned with by the court below. Accordingly, the learned counsel appearing for the appellant would submit that in order to render justice, the appeal may be allowed and the appellant be given an opportunity to contest the suit. 6. The learned counsel appearing for the respondent, on the other hand, would submit that the appellant was cognizant of the pendency of the suit and there was 5 ## F.A.O.No.20 of 2023 absolutely no reason disabling the appellant to appear before the court. He has participated in the execution proceedings and approached this Court twice challenging orders in the execution proceedings. Having contested the execution proceedings all throughout he cannot be heard to contend that he was not aware of the passing of the decree. The learned counsel would submit that the Sub Court, Thalassery had dismissed I.A.No.1 of 2021 after considering all such aspects and there is no reason to interfere with the impugned orders. 7. In I.A.No. 1 of 2021 the appellant averred that there was a delay of 1652 days. It is true that the period from 15.03.2020 is liable to be excluded in the light of the decision of the Apex Court **In Re:Cognizance for Extension of Limitation [(2022) 3 SCC 117]** . Therefore the delay in filing I.A.No.2 of 2021 is 1287 days. The question is whether the appellant placed materials before the court below to substantiate that there was sufficient reason for the delay of aforesaid period in filing I.A.No.2 of 2021. 6 ## F.A.O.No.20 of 2023 8. 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 circumstances that led to the delay. 9. 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 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. 7 F.A.O.No.20 of 2023 10. 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 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. 11. 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 Apex Court in **Katiji [(1987) 2 SCC 107]** , the concept of liberal 8 ## F.A.O.No.20 of 2023 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. 12. Even after deducting the period after 15.03.2020, the delay is 1287 days. The essential reason stated by the appellant for his non-appearance before the court and the delay is that he did not get information regarding hearing date of the case and after knowing about the exparte decree, he could not contact his counsel immediately. It may be noted that this is a case where the appellant filed a written statement refuting the contentions of the respondent in the plaint. Therefore, the appellant was well aware of the requirement of appearing before the court and contesting the suit. That apart, after passing the decree on 06.08.2016 when the notice in E.P.No.68 of 2017 was received, the appellant appeared before the court and participated in the proceedings 9 F.A.O.No.20 of 2023 in the execution petition. As rightly pointed out by the learned counsel for the appellant the payment of an amount to the respondent in the execution proceedings cannot be termed as his acceptance of the validity of the decree. However, that is sufficient indication that the appellant knew about passing of the decree as well as the steps being taken by the respondent for execution of the decree. But, he did not take steps for filing the petition for setting aside the exparte decree in time. After a long lapse of the countable delay of 1287 days the appellant approached the court with the application for setting aside the decree and application for condonation of delay. Thus it becomes a case where the question of prejudice on account of the long delay certainly attracts. As held in **Esha Bhattacharjee** (supra), which has been followed in **Rafeek** (supra) when there is inordinate delay the doctrine of prejudice is attracted and a strict approach in the matter of condonation of delay is required. 13. The reasons set forth by the appellant for the delay are totally insufficient to condone such an inordinate delay. The submissions of the learned counsel for the appellant is 10 ## F.A.O.No.20 of 2023 that the defence set forth by the appellant justifies affording him an opportunity to contest the case. The said contention is not able to be accepted since the appellant slept over his right without any justifiable reason. Therefore, we find no reason to interfere with the order of the Sub Court, Thalassery in I.A.Nos. 1 and 2 of 2022 in O.S.No.97 of 2014. The appeal therefore fails and the same is accordingly dismissed. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr 11 F.A.O.No.20 of 2023 ## **APPENDIX OF FAO 20/2023** ## **PETITIONER ANNEXURES** **ANNEXURE A1** **TRUE COPY OF DECREE DATED 06.08.2016 IN O.S 97/2014 ON THE FILE OF PRINCIPLE SUB COURT, THALSSERY** **THE ORIGINAL OF RETURNED CMA 5/2022** **ANNEXURE A2 THE ORIGINAL OF RETURNED CMA 5/2022 ANNEXURE A3 TRUE COPY OF AFFIDAVIT AND PETITION IN IA 03/2022 IN CMA 5/2022 FILED BEFORE DISTRICT COURT, THALASSERY** **ANNEXURE A4 TRUE COPY OF ORDER DATED 03.01.2023 IN CMA 5/2022 OF ADDITIONAL DISTRICT COURT THALASSERY** **ANNEXURE A5 TRUE COPY OF ORDER DATED 30.11.2022 IN FAO 104/2022**