High Court of KeralaDivision BenchOriginal petition dismissed; no interference wi...

L. Shaila v. P. Abdul Salam

Case / Petition Number:OP (FC) No. 620 of 2022

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Anil K. Narendran
  • P.G. Ajithkumar
Judgment Date
2023-02-02
Court Decision / Holding
The original petition fails and is dismissed; no interference with Exts. P5 and P6 Family Court orders; the condonation of delay and setting aside of the ex parte decree stand.
Final Disposition
Original petition dismissed; no interference with Family Court orders; extents P5/P6 affirmed.

Parties to the Case

Appellants / Petitioners

  • L. Shaila

Respondents

  • P. Abdul Salam

Legal Representation & Advocates

Counsels for Petitioners

  • • P.K. Pamala
  • • Jishamol Cleetus

Counsels for Respondents

  • • T. M. Raman Karth a

Case Synopsis & Summary

This is a Kerala High Court supervisory petition under Article 227 challenging two Family Court orders in OP 1153/2019, Ernakulam, which granted IA Nos. 2853/2021 under Order IX Rule 13 CPC to set aside an ex parte divorce decree dated 06.02.2020, and IA No. 2854/2021 under Section 5 of the Limitation Act to condone a delay of 493 days. The underlying petition for divorce was filed by the respondent-husband under Section 2(vii)(a) of the Dissolution of Muslim Marriage Act, 1939, resulting in an ex parte decree. The petitioner contends that the Family Court wrongly allowed the interlocutory applications on grounds lacking satisfactory justification for condonation of delay, arguing that there was no valid reason to set aside the ex parte decree. The respondent contends that the Family Court adequately considered explanations and evidence (Exs. P3, P3A, P4, P4A, P5, P6) and exercised discretion properly, relying on liberal principles of condonation and balancing justice against prejudice. The High Court, citing Esha Bhattacharjee and Katiji principles, reviews the liberal approach to delay, distinguishing between inordinate delay and short delays, and ultimately relies on the Cognizance decision to exclude certain COVID-era periods from delay calculations. It holds that the actual delay is only 9 days, and finds no ground to interfere with the Family Court’s orders. The petition is dismissed, and the Family Court orders stand.

Provisions of Law Cited

Dissolution of Muslim Marriage Act, 1939, s. 2(vii)(a)Code of Civil Procedure, 1908, Order IX Rule 13Limitation Act, 1963, s.5Constitution of India, Art. 227

Legal Doctrines & Maxims

  • Liberal, pragmatic, justice-oriented, non-pedantic approach to condonation of delay
  • Reasonableness as a constitutive aspect of liberal approach
  • Substantial justice being paramount
  • No presumption of deliberate delay; consider gross negligence or lack of bona fides
  • Lack of bona fides as a significant factor in condonation
  • Judicial discretion guided by objective reasoning, not routine application
  • Public justice should not be sacrificed over technicalities
  • latitude to State or public bodies in certain procedural matters

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Exts. P5 and P6 were wrongly issued by the Family Court. The essence of the challenge is that IA No. 2853/2021 under Order IX Rule 13 CPC to set aside the ex parte decree was allowed despite an unsatisfactory explanation for condonation of delay of 493 days. The petitioner submits that there is no lawful basis to permit a belated challenge to the ex parte decree, and that the court should have insisted on a more robust demonstration of “sufficient cause” for delay, particularly given the substantial time lag and potential prejudice to the petitioner. The challenge also reflects a claim that the Family Court’s approach undermines the finality of decrees and contradicts established norms on default judgments and procedural safeguards. The petitioner relies on liberal delay-condonation principles but argues they must be bounded by reasonableness and justice, not routine acceptance of belated filings and cost conditions as a remedy for delays.

Contentions of Respondents

The respondent maintains that the Family Court properly exercised its discretion after considering the explanations and evidence (Exs. P3, P3A, P4, P4A, P5, P6). The orders dated 10.03.2022 condoning the delay and setting aside the ex parte decree were not perverse or illegal; the court applied a liberal, reasoned standard consistent with the principles in Esha Bhattacharjee and Katiji, distinguishing between inordinate delay and short delays. The respondent emphasizes that the 9-day actual delay, after excluding COVID-related suspension periods under Re Cognizance for Extension of Limitation, falls within permissible bounds, and the outcome advances substantial justice without prejudice to the petitioner. The Court’s decision is consistent with maintaining judicial discretion and ensuring no injustice arises from technicalities, while balancing public justice considerations and the need to avoid legitimate fraud or misrepresentation.”},

Cited Precedents (4)

Case NameCitationTreatmentExplanation
Esha Bhattacharjee v. Raghunathpur Nafar Academy(2013) 12 SCC 649PositiveCited to articulate the liberal, reasonableness-based approach to condonation of delay and the need for a justice-oriented, non-pedantic application of the law.
Collector, Land Acquisition v. Katiji(1987) 2 SCC 107PositiveCited to support the principle that liberalism in delay depends on reasonableness and not unfettered free play; used to frame the balance between justice and technicality.
Rafeek and other v. K. Kamarudeen and another2021 (4) KHC 34 : (2021) 2 RCR (Rent) 223 : 2021 AIR CC 2752PositiveCited to align with liberal delay principles and the need for careful drafting and non-routine handling of delay applications.
In Re: Cognizance for Extension of Limitation2021 (5) KHC 508PositiveCited to justify exclusion of certain COVID-era periods from computation of delay, affecting the actual delay calculation.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against L. Shaila v. P. Abdul Salam and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 2[ND] DAY OF FEBRUARY 2023 / 13TH MAGHA, 1944 OP (FC) NO. 620 OF 2022 ``` ``` AGAINST THE ORDERS/JUDGMENT DATED 10.3.2022 IN IA NO.2853/2021 IA NO.2854/2021 IN OP 1153/2019 OF FAMILY ``` ## **`COURT,ERNAKULAM`** ## **`PETITIONER/PETITIONER/RESPONDENT:`** ``` L.SHAILA, AGED 47 YEARS D/O LEELAVATHIAMMA , RESIDING AT KANAVU HOUSE, CHEPPANAM.P.O , PANANGAD, ERNAKULAM DISTRICT., PIN - 682506 BY ADVS. P.K.PAMALA JISHAMOL CLEETUS ``` ## **`RESPONDENT/RESPONDENT/PETITIONER:`** ``` P.I. ABDUL SALAM, AGED 50 YEARS S/O LATE ISMALL, RESIDING AT S.VILLA , PANTHEZHAM P.O. MUHAMMA ,ALAPPUZHA DISTRICT, PIN - 688525 ``` ``` BY ADV T.M.RAMAN KARTHA ``` ``` THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 02.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` OP(FC) No.620 of 2022 2 ## **J U D G M E N T** ## Anil K.Narendran, J. The petitioner is the respondent in OP No.1153 of 2019 on the file of the Family Court, Ernakulam, which is one filed by the respondent herein-husband seeking a decree of divorce to dissolve the marriage solemnised between the parties under Section 2(vii)(a) of the Dissolution of Muslim Marriage Act, 1939. In that original petition, the Family Court passed an _ex parte_ decree on 06.02.2020. The respondent filed IA No.2853 of 2021, invoking the provisions under Order IX Rule 13 of the Code of Civil Procedure, 1908 to set aside the _ex parte_ decree in OP No.1153 of 2019. The said interlocutory application was accompanied by IA No.2854 of 2021, invoking the provisions under Section 5 of the Limitation Act, 1963 seeking an order to condone the delay of 493 days in filing the application to set aside the _ex parte_ decree. By Exts.P5 and P6 orders dated 10.03.2022, the Family Court allowed those interlocutory applications on payment of a cost of Rs.3,000/payable to the petitioner herein, on or before 30.03.2022, failing which IA No.2853 of 2021 will stand dismissed, consequently IA No.2854 of 2021 will also stand dismissed. Feeling aggrieved by OP(FC) No.620 of 2022 3 Exts.P5 and P6 orders of the Family Court, the petitioner is before this Court in this original petition invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 2. On 04.11.2022 when this original petition came up for admission, this Court admitted the matter on file and issued notice to the respondent. This Court granted an interim stay of all further proceedings pursuant to Exts.P5 and P6 orders of the Family Court, Ernakulam, for a period of three months. 3. Heard the learned counsel for the petitioner and also the learned counsel for the respondent. 4. The learned counsel for the petitioner would contend that the Family Court went wrong in allowing the interlocutory applications by Exts.P5 and P6 orders, since the respondent herein has not offered satisfactory explanation for condonation of delay of 493 days in filing IA No. 2853 of 2021, the application filed under Order IX Rule 13 of the Code of Civil Procedure. 5. On the other hand, the learned counsel for the respondent would contend that, after considering the explanation offered by the respondent herein, the Family Court allowed IA OP(FC) No.620 of 2022 4 No.2853 of 2021 in OP No.1153 of 2019, by Ext.P5 order dated 10.03.2022, on payment of a cost of Rs.3,000/-. Consequently, I.A.No.2854 of 2021 in OP No.1153 of 2019 was also allowed by Ext.P6 order. The reasoning of the Family Court, while allowing those interlocutory applications, cannot be said to be either perverse or patently illegal, warranting interference of this Court, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. 6. 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. Para.21 of the judgment reads thus; OP(FC) No.620 of 2022 5 “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. OP(FC) No.620 of 2022 6 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.” 7. In **Rafeek and another v. K. Kamarudeen and** ## **another [2021 (4) KHC 34 : (2021) 2 RCR (Rent) 223 : 2021** OP(FC) No.620 of 2022 7 **AIR CC 2752]** 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 **Collector, Land Acquisition v. 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. 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. 8. In **In Re:Cognizance for Extension of Limitation** **[2021 (5) KHC 508]** a Three-Judge Bench of the Apex Court held that in computing the period of limitation for any suit, appeal, application or proceedings, the period from 15.03.2020 till OP(FC) No.620 of 2022 8 ## 12.10.2021 shall stand excluded. 9. In view of the aforesaid decisions of the Apex Court, the actual extent of delay in filing IA No.2853 of 2021, the application filed under Order IX Rule 13 of the Code of Civil Procedure is only 9 days, as against the delay of 493 days stated in IA No.2854 of 2021. 10. In the above circumstances, we find absolutely no reason to interfere with Exts.P5 and P6 orders of the Family Court, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. In the result, this original petition fails and the same is accordingly dismissed. **Sd/ANIL K.NARENDRAN JUDGE** **Sd/P.G.AJITHKUMAR JUDGE** ``` jg ``` OP(FC) No.620 of 2022 9 ## **`APPENDIX OF OP (FC) 620/2022`** |`PETITIONER EXHIBITS`|| |---|---| |`Exhibit P1`|`A TRUE COPY OF THE PETITION FOR DIVORCE`| ||`OP.NO.1153 OF 2019 BEFORE THE FAMILY`| ||`COURT AT ERNAKULAM DATED 22.05.2019`| |`Exhibit P2`|`A TRUE COPY OF THE JUDGMENT IN OP 1153`| ||`OF 2019 OF THE FAMILY COURT AT ERNAKULAM`| ||`DATED 06.02.2020`| |`Exhibit P3`|`A TRUE COPY OF THE PETITION IN IA`| ||`NO.2853 OF 2021 IN OP 1153 OF 2019 TO`| ||`SET ASIDE EXPARTE DECREE OF THE FAMILY`| ||`COURT AT ERNAKULAM DATED 13.07.2021`| |`Exhibit P3(A)`|`TRUE COPY OF COUNTER AFFIDAVIT IN IA`| ||`2853/2021 IN OP 1153/19 FAMILY COURT,`| ||`ERNAKULAM DATED 28.09.2021`| |`Exhibit P4`|`A TRUE COPY OF THE PETITION IN IA`| ||`NO.2854 OF 2021 IN OP 1153 OF 2019 TO`| ||`CONDONE DELAY OF 493 DAYS OF THE FAMILY`| ||`COURT AT ERNAKULAM DATED 13.07.2021`| |`Exhibit P4(A)`|`TRUE COPY OF THE COUNTER AFFIDAVIT IN IA`| ||`2854/21 IN OP 1153/19 OF THE FAMILY`| ||`COURT,ERNAKULAM DATED 28.09.2021`| |`Exhibit P5`|`A TRUE COPY OF THE ORDER DATED`| ||`10.03.2022 IN I.A 2853 OF 2021 IN OP`| ||`1153 OF 2019 OF THE FAMILY COURT AT`| ||`ERNAKULAM`| |`Exhibit P6`|`A TRUE COPY OF THE ORDER DATED`| ||`10.03.2022 IN I.A 2854 OF 2021 IN OP`| ||`1153 OF 2019 OF THE FAMILY COURT AT`| ||`ERNAKULAM`| |`Exhibit P7`|`A TRUE COPY OF THE INTERIM ORDER DATED`| ||`17.08.2022 IN MC 27 OF 2022 OF THE`| ||`JUDICIAL FIRST CLASS MAGISTRATE COURT,`| ||`ERNAKULAM`| OP(FC) No.620 of 2022 10