K.K. REMA v. Aniyankunju K.R. and Shyamlal K.R.

## **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 14[TH] DAY OF JUNE 2023 / 24TH JYAISHTA, 1945** **F.A.O. NO. 163 OF 2015** **AGAINST THE ORDER DATED 15.07.2015 IN I.A.NOS.64 AND 65 OF 2011 IN O.S.NO.6 OF 2008 OF THE SUB COURT, THODUPUZHA** ## **APPELLANT/PETITIONER/1ST DEFENDANT:** **K.K.REMA, AGED 47 YEARS, D/O.KUMARAN, KOORAPPILLIL HOUSE,KUNCHITHANNY KARA, KUNCHITHANNY VILLAGE,DEVIKULAM TALUK, IDUKKI DISTRICT.** **BY ADVS. SRI.K.S.HARIHARAPUTHRAN SRI.DIPU JAMES SRI.GEORGE MATHEW SRI.M.D.SASIKUMARAN SRI.SUNIL KUMAR A.G** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:** **1 ANIYANKUNJU K.R. S/O.RAGHAVAN, KAVUMPARAYIL HOUSE, POTHAMEDU KARA,PALLIVASAL VILLAGE, DEVIKULAM TALUK, PIN - 685 613.** - **2 SHYAMLAL K.R., S/O.RAGHAVAN KAVUMPARAYIL HOUSE, ELLAKKALLU P.O., ELLAKKALLU KARA, KUNJITHANNY VILLAGE, PIN - 685 613.** **BY ADVS. SRI.P.CHANDY JOSEPH SRI.C.K.VIDYASAGAR** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 14.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 F.A.O.No.163 of 2015 ## **JUDGMENT** ## P.G. Ajithkumar, J. This is an appeal filed under Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908. The appellant challenges the order dated 15.07.2015 of the Sub Court, Thodupuzha in I.A.Nos.64 and 65 of 2011 in O.S.No.6 of 2008, which were filed by the appellant seeking to set aside the exparte decree and to condone the delay of 93 days. 2. The appeal was admitted to file on 31.07.2015. Further proceedings in O.S.No.6 of 2008 was granted as per the order in I.A.No.944 of 2015 for a period of three months. On 29.10.2015 the order of stay was extended until further orders. 3. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents. 4. The respondents filed O.S.No.6 of 2008 seeking a decree of specific performance of an agreement for sale. The respondents contended that agreement for sale was executed for a sale consideration of Rs.7,50,000/-, out of which Rs.4,00,000/- was paid as advance sale consideration. The 3 F.A.O.No.163 of 2015 suit was happened to be filed since the appellant failed to perform her part of the contract. In the suit, summons was served on the appellant, but she did not attend the court. No written statement was also filed. The suit was therefore decreed exparte on 20.09.2010. 5. The appellant would contend that she is a woman living in a remote village in Idukki, and therefore, she was not in a position to instruct the counsel to file written statement in time. She did not know about passing of the decree or execution of the sale deed in accordance with the decree. Only when she received notice in the petition for delivery, she came to know about the exparte decree. She immediately had filed I.A.Nos.64 and 65 of 2011 and by that time there occurred a delay of 93 days. 6. The respondents opposed the applications by filing written objection. They contended that having accepted the summons and entered appearance in the suit, the appellant purposefully avoided appearance before the court and absolutely no reason justifying the delay has been stated by the appellant. The applications were accordingly sought to be dismissed. 4 F.A.O.No.163 of 2015 7. The learned Sub Court did not accept the reasons stated by the appellant as true. It is observed in the impugned order that the plea of the appellant that she was out of station for such a long period could not be believed, especially well it has not been stated where was she. Having accepted the summons and entered appearance, her failure to defend the suit appropriately, casts a strict burden on her to furnish sufficient materials to justify the delay and her nonappearance. The learned Sub Judge did not therefore accept that the reason furnished by the appellant for the delay as sufficient. 8. The appellant is a woman. The subject matter of the dispute is her residential building. It cannot normally be expected that such a person would venture to avoid appearance before the court purposefully. It is true that the appellant did not furnish reason for the delay with specifics. However, considering the dispute involved in the suit and also the circumstances of the appellant particularly rustic circumstances, we are of the view that a lenient view is required to be taken in the matter of condonation of delay. It is more so since the duration of the delay is a short period of 93 days. 5 F.A.O.No.163 of 2015 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 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. 10. 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 whereas the second calls for a liberal delineation. Para.21 of the judgment reads thus; 6 F.A.O.No.163 of 2015 “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. 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. 7 F.A.O.No.163 of 2015 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 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] 8 F.A.O.No.163 of 2015 ## 11. 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 for a liberal delineation. 12. In view of the law laid down in the decisions referred to above, I.A.Nos.64 and 65 of 2011 filed by the appellant are liable to be allowed, subject to payment of costs to the respondent. The learned counsel appearing for the respondents would submit that in order to get the sale deed executed the respondents had to spend an amount of Rs.55,000/- and in the event of setting aside the decree, the 9 F.A.O.No.163 of 2015 respondents should lose such an amount. Taking that into account, the appellant is liable to pay a cost of Rs.75,000/-. Accordingly, this appeal is allowed and the impugned order is set aside on the condition that the appellant pays to the respondents a cost of Rs.75,000/- (Rupees seventy five thousand only). The costs shall be paid within one month. On such payment, I.A.Nos.64 and 65 of 2011 will stand allowed. Thereupon, the Sub Court, Thodupuzha will restore O.S.No.6 of 2008 on file and proceed with it in accordance with law. The parties shall appear before the Sub Court on 24.07.2023. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr