Lal Sunil Prakash v. Chandra Sekharan s/o Neelakanda Pillai

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 4[TH] DAY OF AUGUST 2021 / 13TH SRAVANA, 1943** **FAO NO. 150 OF 2019 AGAINST THE COMMON ORDER DATED 19/6/2019 IN** **I.A.NO.1000/15 AND 1001/15 IN OS 106/2011 OF SUB COURT, NEYYATTINKARA, THIRUVANANTHAPURAM** ## **APPELLANT/PETITIONER/DEFENDANT:** **LAL SUNIL PRAKASH, AGED 51 YEARS S/O. NESON, LAL BHAVAN, ARAYOOR WEST , CHENKAL VILLAGE, NEYYATTINKARA TALUK.** **BY ADVS. L.MOHANAN SMT.LIGEY ANTONY** ## **RESPONDENT/COUNTER PETITIONER/PLAINTIFF:** **CHANDRA SEKHARAN S/O. NEELAKANDA PILLAI, AMRITHA BHAVAN, KOOVAKKARA, VELLARADA VILLAGE, PIN-680 584** **BY ADV SRI.S.JUSTUS** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 04.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- FAO NO. 150 OF 2019 ## **JUDGMENT** Anil K. Narendran, J. The appellant is the defendant in O.S.No.106 of 2011 on the file of the Sub Court, Neyyattinkara, a suit filed by the respondent-plaintiff for recovery of an amount of Rs.2,50,000/- together with interest, alleged to have been borrowed by the defendant on 25.04.2010 after executing a promissory note in favour of the plaintiff. On 15.06.2013, when the suit was listed for evidence, the defendant was set ex-parte. The court below proceeded with the said suit and passed an ex-parte decree dated 15.06.2013. The defendant filed I.A.No.1001 of 2015, an application under Order IX Rule 13 of the Code of Civil Procedure seeking an order to set aside the exparte decree dated 15.06.2013, and I.A.No.1000 of 2015 under Section 5 of the Limitation Act, 1963, seeking an order to condone the delay of 1530 days in filing the application to set aside the ex-parte decree. The plaintiff filed objections, opposing the reliefs sought for in those interlocutory applications. Before the court below, the -3- FAO NO. 150 OF 2019 defendant was examined as PW1. The court below by the impugned order dated 19.06.2019 dismissed both the interlocutory applications, on a finding that the defendant could not make out sufficient cause to condone the delay of 1530 days in filing the application to set aside the ex-parte decree. Feeling aggrieved by the order dated 19.06.2019, the appellant-defendant is before this Court in this appeal. 2. On 29.08.2019, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondent by speed post. In I.A.No.1 of 2019, this Court granted an interim order staying the execution of the ex-parte decree in O.S.No.106 of 2011 on the file of the Sub Court, Neyyatinkkara, for a period of two months. The said interim order, which was extended from time to time, is still in force. 3. On 26.07.2019, when this appeal came up for hearing, after arguing for sometime, the learned counsel for the appellant sought adjournment to get instructions as to whether the appellant, who is working at an Aided L.P.School -4- FAO NO. 150 OF 2019 at Mepral, had availed leave on 22.01.2013, for a period of one week. 4. Heard the learned counsel for the appellantdefendant and also the learned counsel for the respondentplaintiff. 5. The issue that arises for consideration in this appeal is as to whether any interference is warranted on the impugned order dated 19.06.2019 of the Sub Court, Neyyatinkara in I.A.No.1000 of 2015 and I.A.No.1001 of 2015, whereby those applications were dismissed on a finding that the defendant could not make out sufficient cause to condone the delay of 1530 days in filing the application to set aside the ex-parte decree. 6. The defendant was set ex-parte on 15.06.2013, when O.S.No.106 of 2011 was listed for evidence before the Sub Court, Neyyattinkara. The Sub Court decreed the suit exparte on 15.06.2013 itself. In the affidavit filed in support of the interlocutory applications, the defendant stated that he was laid up on 15.06.2013 and as such, he could not file the -5- FAO NO. 150 OF 2019 applications in time. The defendant, who was examined as PW1, filed proof affidavit stating that, on 22.01.2013, the date on which the suit was listed for filing written statement, he was laid up due to viral fever. Therefore, he could not appear in court or engage a counsel. During cross examination, the defendant admitted that he had engaged Adv.Satheesh Kumar. The defendant was laid up with viral fever on 22.01.2013. He recovered from viral fever after one week. Thereafter, he met his counsel, who failed to inform him about the order of the court below, whereby he was set ex-parte or even the ex-parte decree passed against him. After considering the pleadings and also the oral testimony of the defendant as PW1, the court below found that the defendant had failed to make out a sufficient cause for condonation of delay of 1530 days in filing the application to set aside the exparte decree. In the impugned order dated 19.06.2019, the court below has also placed reliance on the decisions in **Pundlik Jalam Patil (dead) by LRs v. Executive Engineer, Jalgaon Medium Project [(2008) 17 SCC 448]** , -6- FAO NO. 150 OF 2019 **Basawaraj and another v. Special Land Acquisition Officer [(2013) 14 SCC 81 : AIR 2014 SC 746]** and **Sosamma v. Mariyamma [2015 (4) KHC 858 : ILR 2015 (4) Ker. 290]** . 7. In **Pundlik Jalam Patil [(2008) 17 SCC 448]** the Apex Court held that Section 5 of the Limitation Act provides for extension of prescribed period of limitation in certain cases and confers jurisdiction upon the Court to admit any application or any appeal after the prescribed period if it is satisfied that the applicant or the appellant had sufficient cause for not preferring such application or appeal within the prescribed period. It is true that the power the condone the delay rest with the Court in which the application was filed beyond time and decide whether there is sufficient cause for condoning the delay and regularly the superior court may not interfere with such discretion even if such error found in the discretion so exercised by the Court. Where there is no sufficient cause for condoning the delay, but the delay was condoned, it is a case of discretion not being exercised -7- FAO NO. 150 OF 2019 judicially and the order becomes vulnerable and susceptible for its correction by the superior Court. On the facts of the case, the Apex Court held that, the High Court having found that the respondent in its application made incorrect submission that he had no knowledge of the award passed by the reference court ought to have refused to exercise its discretion. The Apex Court found that the High Court exercised its discretion on wrong principles and in that view of the matter, the exercise of the discretion in the manner done by the High Court cannot be sustained. 8. In **Basawaraj [(2013) 14 SCC 81]** the Apex Court held that, where a case has been presented in Court beyond limitation, the applicant has to explain the Court as to what was the 'sufficient cause', which means an adequate and enough reason which prevented him to approach the Court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the -8- FAO NO. 150 OF 2019 delay. No Court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by the Court in regard to condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the Court on time, condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions, and it tantamount to showing utter disregard to the legislature. 9. In **Sosamma [2015 (4) KHC 858]** , following the law laid down by the Apex Court in **Pundlik Jalam Patil** and **Basawaraj** , a learned Single Judge of this Court held that where a party is found to be negligent, or there is want of bonafides on his part, or found to have not acted diligently or remained inactive, there cannot be justifiable ground to condone the delay. 10. 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 -9- FAO NO. 150 OF 2019 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. 11. 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; “21. From the aforesaid authorities the principles that can broadly be culled out are: -10- FAO NO. 150 OF 2019 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. 21.2 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. -11- FAO NO. 150 OF 2019 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. -12- FAO NO. 150 OF 2019 21.13 The State or a public body or an entity representing a collective cause should be given some acceptable latitude.” 12. In **Esha Bhattacharjee** , after summerising the principles applicable while dealing with an application for condonation of delay, the Apex Court added some more guidelines taking note of the present day scenario, that an application for condonation of delay should be drafted with - careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. Para.22 of the judgment reads thus; “22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:— 22.1 An application for condonation of delay should be drafted with careful concern and not in a halfhazard manner harbouring the notion that the courts are required to condone delay on the -13- FAO NO. 150 OF 2019 bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. 22.2 An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. 22.3 Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. 22.4 The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.” 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 -14- FAO NO. 150 OF 2019 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. 14. In **Robin Thapa v. Rohit Dora [(2019) 7 SCC 359]** , a decision relied on by the learned counsel for the appellant, the Apex Court condoned the delay in filing application under Order IX Rule 13 of the Code of Civil Procedure, 1908, to set aside the ex-parte decree dated 09.10.2014 of Civil Judge, Senior Division, Dehradun. That application was filed on 02.10.2015, which was supported by an application for condonation of delay. The trial court condoned the delay and allowed the application to set aside the ex-parte decree. That order was set aside by the High Court. On the facts of the case, the Apex Court noticed that the appellant came to be served with the notice of the -15- FAO NO. 150 OF 2019 execution proceedings through special messenger on 27.03.2015. Thus, the case of the appellant that he came to know about the passing of the decree only on 17.11.2015 cannot be acted upon. In the execution of the decree, sale deed has been executed in favour of the respondent and it is only thereafter that despite the receipt of the notice dated 27.03.2015, the appellant has set up the case that he came to know about the passing of decree only several months thereafter. Considering the fact that the matter arises from a suit for specific performance, which is undoubtedly a discretionary relief, and since the appellant was prepared to deposit the entire amount spent by the respondent for getting the sale deed executed, the Apex Court found that the interest of justice demands that subject to putting the appellant on terms, he should be given an opportunity to contest a case. Accordingly, the appeal was allowed and the impugned order was set aside subject to the conditions that the appellant will deposit a sum of Rs.67,400/- towards stamp duty and registration charges paid by the respondent, within a period of -16- FAO NO. 150 OF 2019 one month from the date of judgment, in the execution court and a further deposit of Rs.50,000/- as cost to be paid to the respondent. A reading of the judgment of the Apex Court would make it explicitly clear that the Apex Court has taken a lenient view considering the fact that the suit is one for specific performance and also the extent of delay, etc. 15. In the instant case, the appellant-defendant has failed to show 'sufficient cause' for condonation of the inordinate delay of 1530 days in filing the application to set aside the exparte degree. During the course of arguments, it was noticed that the appellant is working at an Aided L.P. School at Mepral. On 26.07.2021, when this appeal came up for hearing, the learned counsel for the appellant sought time to get instructions as to whether the appellant had availed leave on 22.01.2013 for a period of one week. Today, during the course of arguments, the learned counsel for the appellant, on instructions, would submit that the appellant had not availed any leave for one week from 22.01.2013 and as a matter of fact, he had attended duties as L.P. School -17- FAO NO. 150 OF 2019 teacher in the Aided L.P. School at Mepral during the said period. Therefore, it can only be concluded that, the appellant has chosen to file affidavits in support of the interlocutory applications for condonation of delay and also to set aside the ex-parte decree stating incorrect facts. The conduct of the appellant has to be deprecated in the strongest words and we do so. In the absence of sufficient cause shown for condonation of the inordinate delay of 1530 days in filing the application to set aside the ex-parte decree, the court below cannot be found fault in rejecting I.A.Nos.1000 of 2015 and 1001 of 2015. In the result, this appeal fails and the same is accordingly, dismissed. No order as to cost. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **M.R. ANITHA, JUDGE** AV/4/8