M.A. ANSAR v. SHAJI MATHAI

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE G.GIRISH ``` ``` THURSDAY, THE 1[ST] DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945 FAO NO. 14 OF 2024 ``` ``` ORDER DATED 07.10.2023 IN IA 1/2021 IN OS 128/2018 OF ASSISTANT SESSIONS COURT/I ADDITIONAL SUB COURT,ERNAKULAM ``` ``` APPELLANT/PETITIONER IN IA 1 AND 2 OF 2021 IN OS 128/2018: ``` ``` M.A.ANSAR, AGED 50 YEARS, S/O ABDUL AZEEZ, SHAMNA GARDENS, KILIKOLLOOR, MANGADU VILLAGE, KOLLAM, PIN - 691004 ``` ``` BY ADV MUHAMMED KABEERE S ``` ``` RESPONDENT/RESPONDENT IN IA NO.1 AND 2 OF 2021 IN OS NO.128/2022: ``` ``` SHAJI MATHAI, AGED 52 YEARS, S/O P.S.MATHAI, HOUSE NO.7/322, PALATHOTTATHIL HOUSE, MURIYAD P.O, THRISSUR DISTRICT, PIN - 680694 ``` ``` BY ADVS. Praveen Hariharan ``` ``` K.S.SMITHA(K/106/2012) ``` ``` SNEHA M.S.(K/001669/2023) ``` ``` AMAL DEV D(K/001570/2018) ``` ``` ABHIJITH E.R.(K/000352/2021) ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 01.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 F.A.O.No14 of 2024 ## **J U D G M E N T** ## G. Girish, J. The defendant in O.S.No.128 of 2018 of the First Additional Sub Court, Ernakulam has filed this appeal against the dismissal of the petition filed by him under order IX Rule 13 of the Code of Civil Procedure, consequential to dismissal of a delay condonation petition filed under Section 5 of the Limitation Act. 2. The above money suit filed by the plaintiff was decreed ex parte by the Additional Sub Court, Ernakulam on 31.01.2019. According to the appellant/defendant, he had engaged a lawyer to defend the said suit, but the above lawyer did not file vakalath or appear before the court below. It is further contended that the appellant came to know about the above aspect only when he received the notice in execution proceedings. 3. The learned Sub Judge, as per common order dated 07.10.2023, observed that the reasons stated by the appellant for his non-appearance before the said court was not at all convincing, and that he failed to explain the delay of 496 days in filing a petition to set aside the ex parte decree. Accordingly, the above petitions were dismissed by the Additional Sub Court, Ernakulam. 4. Notice of this appeal has been duly served on the respondent/plaintiff. 3 F.A.O.No14 of 2024 5. Heard the learned counsel for the appellant. 6. As already stated above, the appellant has come forward with the contention that he had engaged a lawyer to defend the suit before the trial court, but the above lawyer did not care to file vakalath and to appear before the said court to defend his case. It is his further contention that he came to know about the ex parte decree only when he received notice in the execution proceedings. The court below has observed in the impugned order that the affidavit filed by the appellant in support of the interim applications did not reveal any attempt made by him to ascertain atleast one of the posting dates of the case, and that the applications filed by the appellant even does not disclose the name of the lawyer engaged by him or the date of service of summons upon him. The appellant also did not offer satisfactory explanation to condone the inordinate delay of 496 days, which occasioned in the filing of a petition under Order IX Rule 13 of the Code of Civil Procedure, to set aside the ex parte decree. Thus, it could be seen that the appellant had approached the court below in a casual and apathetic manner with the petitions to condone the delay and to set aside the ex parte decree passed against him, without taking any serious attempts to convince the court below that there were sufficient grounds to condone the delay and to set aside the ex parte decree passed against him. 4 F.A.O.No14 of 2024 7. It is true that the general trend of judicial precedents in the matter of condonation of delay by invoking Section 5 of the Limitation Act, is that the courts shall take a liberal view, when the applicant is able to bring out the necessary materials to show that there was sufficient cause for the delay which occasioned in moving the application or appeal, as the case may be, before the court concerned. So also, it has been laid down that courts should avoid taking a pedantic attitude and sticking on to technicalities, while dealing with delay condonation petitions, restoration petitions and matters relating to setting aside ex parte decrees. But at the same time, the Apex Court as well as various High Courts have emphasized the need to identify genuine cases from those cases where such applications are filed without any bona fides, with the sole objective of procrastination of proceedings to vex and harass the opposite parties. It is well-settled that courts are not expected to allow applications of such nature for the mere asking of the same, if it is found that such applications are filed in a perfunctory manner, without stating genuine grounds for invoking the relevant provisions of law, which are enacted upon the principles of equity. 8. 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 5 ## F.A.O.No14 of 2024 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: 21.1 (i) 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 (ii) 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 (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. 21.4 (iv) 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 (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 6 F.A.O.No14 of 2024 21.6 (vi) 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 (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8 (viii) 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 (ix) 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 (x) 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 (xi) 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 (xii) 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. 7 F.A.O.No14 of 2024 21.13 (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.” 9. In **Esha Bhattacharjee** , 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 haphazard 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 (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard 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. 22.2 (b) 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 (c) 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 8 F.A.O.No14 of 2024 collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. 22.4 (d) 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.” 10. In **Rafeek and another v. K. Kamarudeen and another [2021 (4) KHC 34 : (2021) 2 RCR (Rent) 223 : 2021 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, Anantnag & another v. Mst.Katiji & Others [(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. 9 F.A.O.No14 of 2024 11. Applying the principles of law discussed aforesaid, to the facts of the case on hand, it is not possible to find fault with the verdict of the learned Additional Sub Judge, who dismissed I.A No.1 of 2021 and I.A No.2 of 2021 filed by the appellant for condonation of delay of 496 days and setting aside the ex parte decree passed against him. Thus, there is absolutely no scope for interference with the common order under challenge in this appeal. In the result, the appeal is hereby dismissed. (sd/-) (sd/-) **G. GIRISH, JUDGE** jsr/vgd