Kochuplamood Paramelkavu Devi Temple v. S.P. Sivaprasad (deceased) and others

``` FAO.No.363 OF 2014 1 ``` ## **`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 26[TH] DAY OF JUNE 2023 / 5TH ASHADHA, 1945 ``` ``` FAO NO.363 OF 2014 ``` ``` AGAINST THE COMMON ORDER IN I.A.NOS.4 OF 2014 & 5 OF 2014 IN O.S.NO.2 OF 2011 OF DISTRICT COURT, THODUPUZHA ``` ``` APPELLANTS/PETITIONER/DEFENDANTS: ``` - **`1 KOCHUPLAMOOD PARAMELKAVU DEVI TEMPLE AGED 62 YEARS REPRESENTED BY ITS PRESIDENT, RAMACHANDRAN ACHARI, S/O.KRISHNAN ACHARI, BALAGRAM POST, UDDUMPANCHOLA, IDUKKI DISTRICT.`** - **`2 VIPIN P.V., AGED 28 YEARS S/O.VIJAYAN, SECRETARY, KOCHUPLAMOOD PARAMELKAVU DEVI TEMPLE, BALAGRAM POST, UDUMPANCHOLA, IDUKKI DISTRICT.`** - **`3 KOCHUNARAYANA PILLAI AGED 58 YEARS VENGAVILAYIL HOUSE, BALAGRAM POST, UDUMPANCHOLA, IDUKKI DISTRICT.`** - **`4 C.K.BIJU AGED 38 YEARS CHENNATTU HOUSE, BALAGRAM POST, UDUMPANCHOLA, IDUKKI DISTRICT.`** ``` FAO.No.363 OF 2014 2 ``` ## **`BY ADV SRI.DENIZEN KOMATH`** ## **`RESPONDENTS/RESPONDENTS/PLAINTIFFS:`** |**`1`**|**`S.P.SIVAPRASAD (DIED)`**| |---|---| ||**`S/O.PEETHAMBARAN,`**| ||**`SRAMBICKAL HOUSE,`**| ||**`BALAGRAM POST,`**| ||**`UDUMPANCHOLA,`**| ||**`IDUKKI DISTRICT - 685 554.`**| |**`2`**|**`SANILKUMAR K.S.`**| ||**`AGED 35 YEARS`**| ||**`S/O.SIVARAMAN,`**| ||**`BLOCK NO.1098,`**| ||**`BALAGRAM POST,`**| ||**`UDUMPANCHOLA,`**| ||**`IDUKKI DISTRICT - 685 554.`**| |**`3`**|**`P.N.SAHADEVAN,`**| ||**`AGED 58 YEARS`**| ||**`S/O.NATESAN`**| ||**`MANGALATH HOUSE,`**| ||**`BALAGRAM POST,`**| ||**`UDUMPANCHOLA,`**| ||**`IDUKKI DISTRICT`**| |**`4`**|**`MANU PRAKASH`**| ||**`AGED 36 YEARS`**| ||**`S/O.SREEDHARAN,`**| ||**`CHALUVALIL HOUSE,`**| ||**`DO. DO.`**| ||**`R1 BY ADVS.SRI.P.CHANDY JOSEPH`**| ||**`SRI.C.K.VIDYASAGAR`**| ## **`THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD`** ``` ON 26.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` FAO.No.363 OF 2014 3 ``` ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellants are the defendants in O.S.No.2 of 2011 on the file of the District Court, Thodupuzha, a suit filed by the respondents herein-plaintiffs for settlement of a scheme for the administration of the 1[st] appellant-1[st] defendant Kochuplamood Paramelkavu Devi Temple, Idukki District, invoking the provisions under Section 92 of the Code of Civil Procedure, 1908. In that suit, the temple was represented by the then President of the Temple Committee. The 2[nd] appellant-2[nd] defendant was the Secretary of the Temple Committee and 3[rd] and 4[th] appellants-3[rd] and 4[th] defendants were the members of the said Committee during the relevant period. In O.S.No.2 of 2011, an _ex parte_ preliminary decree was passed on 26.07.2013. In terms of the preliminary decree, the plaintiffs filed I.A.No.829 of 2013 for passing a final decree. That application was filed on 30.11.2013, in which notice was ordered to the defendants, returnable by 12.02.2014. At that time, I.A.No.3 of 2014 was filed to substitute and replace defendants 1 and 2 by the then President and Secretary. I.A.No.5 of 2014 was filed to set aside the preliminary decree dated 26.07.2013 in O.S.No.2 of 2011 and I.A.No.4 of ``` FAO.No.363 OF 2014 4 ``` 2014 was filed seeking an order to condone the delay of 134 days in filing the application to set aside the _ex parte_ preliminary decree. The plaintiffs opposed those interlocutory applications. 2. After considering the rival contentions, the District Court, Thodupuzha allowed I.A.No.3 of 2014 for substitution. However, dismissed I.A.Nos. 4 of 2014 and 5 of 2014 for the reasons stated in paragraph 8 of the order dated 05.11.2014, which reads as follows:- “8. It can be seen that the 1[st] and 2[nd] defendants, who were the office bearers at the time when the suit was instituted and subsequently have caused to remain _ex parte_ in the fag end of the proceedings when the preliminary decree was passed and it is seen that, they as the present office bearers have come forward with the prayers made in the respective applications. It is borne out from the records of the case that the preliminary decree was passed with a blend of adjudicatory process at the hands of the court taking all aspects into consideration By no stretch of imagination, can it be said that the preliminary decree was passed on the back of the petitioners in I.A.Nos3/2014, 4/2014 and 5/2014 and the said decree has caused any kind of prejudice to them especially when all options are made door are kept open for the formulation of the scheme in the final decree proceedings. To take a view that the decree is liable to be set aside, will stand to derail the principles of justice and it will also cater to a situation of extended and prolonged ``` FAO.No.363 OF 2014 5 ``` litigation resulting in chaos and multiplicity of the proceedings. In this view of the matter, I find merit in the contentions put up by the plaintiffs in the original suit who are the petitioners in I.A.No.829/2013 as endorsed by their counsel Sri. C.K.Vidyasagar.” 3. Feeling aggrieved by the dismissal of I.A.Nos. 4 of 2014 and 5 of 2014 in O.S.No.2 of 2011 by the order dated 05.11.2014, the appellants-defendants are before this Court in this appeal, invoking the provisions under Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908. 4. On 19.12.2014, when this appeal came up for admission, this court admitted the matter on file and issued urgent notice to the respondents, returnable in ten days. In I.A.No.1898 of 2014, this Court granted an interim order staying the passing of the final decree in O.S.No.2 of 2011 on the file of the District Court, Thodupuzha for a period of three months. The said interim order which was extended from time to time, was extended until further orders on 07.04.2016. 5. Service of notice is complete on the respondents. Despite service of notice, none appears for respondents 2 and 3. On 14.06.2023, the learned counsel for the 1[st] respondent reported that the said respondent died on 06.12.2021. The learned counsel for the appellants sought time to take necessary ``` FAO.No.363 OF 2014 6 ``` steps. 6. Today, when the appeal is taken up for consideration, the learned counsel for the appellants has filed a memo dated 26.06.2023. The learned counsel would submit that the issue raised in the suit pertains to the settlement of a scheme under Section 92 of the Code for the administration of the 1[st] appellant- 1[st] defendant Kochuplamood Paramelkavu Devi Temple. The 2[nd] and 3[rd] appellants-2[nd] and 3[rd] plaintiffs, who are having the same interest, are defending this proceedings, there is no necessity to implead the legal representatives of the deceased 1[st] respondent1[st] defendant. 7. The memo filed by the learned counsel for the appellants is recorded. Registry to show the correct status of the 1[st] respondent-1[st] plaintiff, in the cause title of this appeal. 8. The learned counsel for the appellants-defendants would contend that the reasoning of the court below in the impugned order dated 05.11.2014 for dismissing I.A.Nos.4 and 5 of 2014 is _per se_ arbitrary and illegal, which warrants interference in this appeal. Though the 1[st] respondent-1[st] plaintiff is no more, since the suit is one filed under Section 92 of the Code for framing a scheme for the administration of ``` FAO.No.363 OF 2014 7 ``` Kochuplamood Paramelkavu Devi Temple, the learned counsel for the 1[st] respondent would point out that the court below has stated valid reasons in the impugned order to reject the interlocutory applications filed by the appellants under Order IX Rule 13 of the Code of Civil Procedure, 1908. 9. 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 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. 10. It is well settled that the Law of Limitation is founded ``` FAO.No.363 OF 2014 8 ``` 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. 11. 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. 12. In **Esha Bhattacharjee v. Raghunathpur Nafar** ``` FAO.No.363 OF 2014 9 ``` **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. 13. 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 ``` FAO.No.363 OF 2014 10 ``` 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. 14. Order IX, Rule 13 of the Code provides for setting aside decree _ex parte_ against defendant. As per sub-rule (1) of Rule 13, in any case in which a decree is passed _ex parte_ against a defendant, he may apply to the court which the decree was passed for an order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. As per the first proviso to sub-rule (1), where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also. As per the second proviso to sub-rule (1), no court shall set aside a decree passed _ex parte_ merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice ``` FAO.No.363 OF 2014 11 ``` of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. As per the Explanation, where there has been an appeal against a decree passed _ex parte_ under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that _ex parte_ decree. ## 15. In **G.P. Srivastava v. R.K. Raizada [(2000) 3 SCC** **54]** in the context of an application filed under Order IX, Rule 13 of the Code, for setting aside an _ex parte_ decree, the Apex Court held that, the word ‘was prevented by any sufficient cause from appearing’ occurring in Order IX, Rule 13 of the Code must be liberally construed to enable the court to do complete justice between the parties, particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order IX, Rule 13 of the Code has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. 16. In **G.P. Srivastava** , the Apex Court held further that, ``` FAO.No.363 OF 2014 12 ``` ‘sufficient cause’ for non-appearance refers to the date on which the absence was made a ground for proceeding _ex parte_ and cannot be stretched to rely upon other circumstances anterior in time. If ‘sufficient cause’ is made out for non-appearance of the defendant on the date fixed for hearing when _ex parte_ proceedings initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the _lis_ decided on merits. 17. In **Peeves Enterprises v. Muhammed Ashraf** **[2015 (3) KHC 981]** , relying on the law laid down by the Apex Court in **G.P. Srivastava** , a Division Bench of this Court held that, on an application filed under Order IX, Rule 13 of the Code of Civil Procedure, the court has to find out whether the erring party has made out sufficient cause for setting aside the _ex parte_ decree. When no negligence or inaction is imputable to the erring party and the absence was not mala fide or intentional, the ``` FAO.No.363 OF 2014 13 ``` discretion has to be exercised in his favour, especially when the application is within the statutory time limit. In appropriate cases, the plaintiff can be compensated by adequate costs for the loss of time and the inconvenience caused to him. But any such condition shall not be too onerous. 18. In the instant case, O.S.No.2 of 2011 is one filed under Section 92 of the Code for framing a scheme for the administration of Kochuplamood Paramelkavu Devi Temple. The Trust deed relied on by the plaintiffs in O.S.No.2 of 2011 is under challenge in O.S.No.151 of 2011 on the file of the Sub Court, Kattappana, which was set aside by the judgment and decree dated 29.09.2014. The plaintiffs in O.S.No.2 of 2011 are arrayed as the accused in Crime No.108/2011 of Nedumkandam Police Station, for offence punishable under Sections 406, 419, 420, 465, 467 and 471, read with Section 120(b) of the Indian Penal Code, 1860. The change in the office bearers of the Temple Committee, during the pendency of O.S.No.2 of 2011 had occasioned in the _ex parte_ preliminary decree dated 26.07.2013. In the said suit, an application was also filed by the defendants seeking stay of the proceedings pending adjudication in O.S.No.151 of 2011 on the file of the Sub Court, Kattappana. ``` FAO.No.363 OF 2014 14 ``` Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the reasoning of the court below in paragraph 8 of the impugned order dated 05.11.2014 for dismissing I.A.Nos 4 and 5 of 2014 cannot be sustained in law. 19. In the result, this appeal is allowed by setting aside the impugned order dated 05.11.2014 dismissing I.A.Nos.4 and 5 of 2014, thereby condoning the delay of 134 days, as sought for in I.A.No.4 of 2014 and setting aside the _ex parte_ preliminary decree dated 26.07.2013 in O.S.No.2 of 2011, as sought for in I.A.No.5 of 2014. The District Court, Thodupuzha shall proceed with O.S.No.2 of 2011 and dispose of the same, as expeditiously as possible, at any rate, within a period of five months from the date of receipt of a certified copy of this judgment. Sd/- **ANIL K. NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** DCS/26.06.2023