Mamachan v. Nazar

# **`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 10[TH] DAY OF FEBRUARY 2022 / 21ST MAGHA, 1943 ``` ``` FAO NO. 71 OF 2020 ``` ``` AGAINST THE ORDER IN I.A.No.391/2017 AND I.A.NO.392/2017 IN OS 33/2011 DATED 18.01.2020 OF PRINCIPAL SUB COURT / COMMERCIAL COURT, ``` ## **`KOLLAM`** ## **`APPELLANT/PETITIONER/DEFENDANT:`** ``` MAMACHAN AGED 64 YEARS S/O.KUNJAPPY, RESIDING AT SHOBHA BHAVAN, KUMMALLOOR CHERRY, KUMMALLOOR P.O., ADICHANALLOOR VILLAGE, KOLLAM DISTRICT-691311. ``` ``` BY ADV S.SREEKUMAR (KOLLAM) ``` ## **`RESPONDENT/RESPONDENT/PLAINTIFF:`** ``` NAZAR AGED 47 YEARS S/O.SAIDU MOHAMMED HANEEFA, RESIDING AT THANKAM, UDAYAMARTHANDAPURAM CHERRY, MUNDAKKAL VILLAGE, KOLLAM DISTRICT-691001. ``` ``` BY ADV C.S.SUMESH ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 10.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` FAO NO. 71 OF 2020 ``` ``` -2- ``` ## **JUDGMENT** ## Anil K. Narendran, J. The appellant is the defendant in O.S.No.33 of 2011 on the file of the Principal Sub Court, Kollam, a suit filed by the respondent herein-plaintiff, on 10.01.2011, for realisation of an amount of Rs.6,67,500/- together with interest at the rate of 12% from the defendant, on the strength of an agreement for sale dated 24.03.2007, and for other consequential reliefs. 2. The defendant, on receipt of summons, entered appearance and filed a written statement. When O.S.No.33 of 2011 was listed for trial, the defendant was absent. Since there was no representation, the defendant was set ex-parte and the suit was decreed ex parte on 19.06.2013, allowing the plaintiff to realise a sum of Rs.6,67,500/- together with interest at the rate of 12% from the date of suit till realisation and cost from the defendant and his assets. 3. The defendant filed I.A.No.392 of 2017, an application under Order IX Rule 13 of Code of Civil Procedure, 1908, seeking an order to set aside the ex-parte decree dated 19.06.2013 in O.S.No.33 of 2011. That application was filed along with ``` FAO NO. 71 OF 2020 ``` ``` -3- ``` I.A.No.391 of 2017, under Section 5 of the Limitation Act, 1963, for condonation of delay of 1275 days. The Sub Court dismissed those applications by the order dated 18.01.2020. Challenging those orders, the appellant-defendant has filed this appeal, invoking the provisions under Order XLIII Rule 1(d) of the Code. 4. On 10.12.2021, when this appeal came up for admission, this Court admitted the matter on file and issued urgent notice to the respondent, by special messenger. 5. On 16.12.2021, when this matter came up for consideration, the respondent-plaintiff entered appearance through counsel. The learned counsel for the plaintiff undertook that till the next posting date, no coercive steps will be taken against the tenant-judgment debtor, in the execution petition pending before the Principal Sub Court, Kollam. 6. Heard the learned counsel for the appellant–defendant and also the learned counsel for the respondent–plaintiff. 7. The issue that arises for consideration in this appeal is as to whether any interference is warranted on the impugned orders of the court below dated 18.01.2020 in I.A.No.391 of 2017, an application filed under Section 5 of the Limitation Act, seeking an ``` FAO NO. 71 OF 2020 ``` ``` -4- ``` order to condone delay of 1275 days and in I.A.No.392 of 2017, an application filed under Order IX Rule 13 of the Code of Civil Procedure to set aside the ex-parte decree dated 19.06.2013 in O.S.No.33 of 2011. 8. The order of the court below dated 18.01.2020 in I.A.No.391 of 2017 in O.S.No.33 of 2011 reads thus: “Heard. The case of the petitioner is that on the date fixed for trial he was suffering from back pain for which he had availed medical assistance from Medical College, Thiruvananthapuram. While so I 2019 he became ill owing to piles for which he had to undergo a surgery at Assisia Medical College. Besides canvassing such a case no treatment records were produced in support of the same. Mere allegation that he was suffering from such ailments during the relevant period is not sufficient in itself to condone such an inordinate delay in filing application for setting aside the exparte decree. In the result this application stands dismissed with costs.” 9. The learned counsel for the appellant-defendant would contend that the court below passed the impugned orders, even without affording a reasonable opportunity to the defendant to ``` FAO NO. 71 OF 2020 ``` ``` -5- ``` substantiate his contention as to 'sufficient cause' for condonation of the delay of 1275 days in filing I.A.No.392 of 2017. Though there was no counter or objection filed by the respondent-plaintiff, the court below dismissed those applications without properly appreciating the case of the defendant. 10. Per contra, the learned counsel for the respondentplaintiff would contend that, as a matter of fact, the plaintiff has filed detailed objection to the aforesaid interlocutory applications. After the ex-parte decree dated 19.06.2013 in O.S.No.33 of 2011, the defendant-judgment debtor, appeared before the execution court on 17.08.2016 and defended E.P.No. 37 of 2016 in O.S.No. 33 of 2011. 11. 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 satisfes the ``` FAO NO. 71 OF 2020 ``` ``` -6- ``` court that he had sufcient 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. 12. It is well settled that the Law of Limitation is founded 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, sufcient cause is required to be shown, thereby explaining the sequence of events and the circumstances that led to the delay. ``` FAO NO. 71 OF 2020 ``` ``` -7- ``` 13. 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. 14. 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 frst one warrants strict approach whereas the second calls for a liberal delineation. Para.21 of the judgment reads thus; ``` FAO NO. 71 OF 2020 ``` ``` -8- ``` “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. ``` FAO NO. 71 OF 2020 ``` ``` -9- ``` 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.” ``` FAO NO. 71 OF 2020 ``` ``` -10- ``` 15. 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 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 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. ``` FAO NO. 71 OF 2020 ``` ``` -11- ``` 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.” 16. 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 **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** ``` FAO NO. 71 OF 2020 ``` ``` -12- ``` **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. 17. In **Woolcombers of India Ltd. v. Woolcombers Workers Union [(1974) 3 SCC 318]** the Apex Court, while considering the challenge made against an award under Section 11 of the Industrial Disputes Act, 1947, held that the giving of reasons in support of their conclusions by judicial and quasi judicial authorities when exercising initial jurisdiction is essential for various reasons. Firstly, it is calculated to prevent unconscious unfairness or arbitrariness in reaching the conclusions. The very search for reasons will put the authority on the alert and minimise the chances of unconscious infiltration of personal bias or unfitness in the conclusion. The authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous ``` FAO NO. 71 OF 2020 ``` ``` -13- ``` considerations. Secondly, it is a well known principle that justice should not only be done but should also appear to be done. Unreasoned conclusions may be just but they may not appear to be just to those who read them. Reasoned conclusions, on the other hand, will have also the appearance of justice. Thirdly, it should be remembered that an appeal generally lies from the decisions of judicial and quasi judicial authorities to the Apex Court by special leave granted under Article 136. A judgment which does not disclose the reasons, will be of little assistance to the court. The court will have to wade through the entire record and find for itself whether the decision in appeal is right or wrong. Therefore, the Apex Court emphasised that judicial and quasi judicial authorities should always give the reasons in support of their conclusions. 18. In **English v. Emery Reimbold and Strick Ltd. [[2002] 1 WLR 2409]** the Court of Appeal held that, a judicial decision which affected the substantive rights of the parties should be reasoned, although some judicial decisions, e.g. interlocutory case management decisions, did not require reasons; that, while a judge was not obliged to deal with every ``` FAO NO. 71 OF 2020 ``` ``` -14- ``` argument or identify or explain every factor which weighed with him, the issues the resolution of which were vital to his conclusion should be identifed and the manner in which he resolved them briefy but clearly explained, so that the judgment enabled the parties and any appellate tribunal readily to analyse the reasoning essential to his decision. 19. In **Assistant Commissioner, Commercial Tax Department v. Shukla and Brothers [(2010) 4 SCC 785]** the Apex Court held that, the principle of natural justice has twin ingredients; firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. Violation of either of them could in the given facts and circumstances of the case, vitiate the order itself. Such rule being applicable to the administrative authorities certainly requires that the judgment of the court should meet with this requirement with higher degree of satisfaction. ``` FAO NO. 71 OF 2020 ``` ``` -15- ``` 20. In **Shukla and Brothers** the Apex Court held further that, a litigant who approaches the court with any grievance in accordance with law is entitled to know the reasons for grant or rejection of his prayer. Reasons are the soul of orders. Nonrecording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. These principles are not only applicable to administrative or executive actions, but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements. A judgment without reasons causes prejudice to the person against whom it is pronounced, as that litigant is unable to know the ground which weighed with the court in rejecting his claim and also causes impediments in his taking adequate and appropriate grounds before the higher court in the event of challenge to that judgment. 21. In **Rafeek [2021 (4) KHC 34 : (2021) 2 RCR (Rent) 223 : 2021 AIR CC 2752]** the Division Bench held that, In view of the law laid down by the Apex Court in **Esha Bhattacharjee [(2013) 12 SCC 649]** , an application for ``` FAO NO. 71 OF 2020 ``` ``` -16- ``` 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. Such an application should be drafted with careful concern and no court shall deal with the same in a routine manner. The Division Bench further held that, in view of the law laid down in **Shukla and Brothers [(2010) 4 SCC 785]** , the order passed by the Rent Control Appellate Authority, on an application for condonation of delay filed under Section 5 of the Limitation Act, should give brief reasons for arriving at a conclusion that the appellants have shown ‘sufficient cause’ for condonation of delay in filing the appeal, after adverting to the contentions raised in the objection filed by the respondents, showing proper application of mind. The respondents in an application for condonation of delay are entitled to know the reasons for rejection of their objections. 22. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that cryptic orders of the court below dated 18.01.2020 in I.A.Nos.391 of 2017 and ``` FAO NO. 71 OF 2020 ``` ``` -17- ``` 392 of 2017 in O.S.No.33 of 2011, cannot be sustained in law. The court below dismissed I.A.No.391 of 2017 without properly considering the explanation offered by the defendant for the delay or even the objections raised by the plaintiff against condonation of delay. The court below ought to have granted a reasonable opportunity to the defendant, who was aged more than 60 years, to produce medical certificate or treatment records to substantiate his contentions and also an opportunity to adduce oral evidence. 23. In the result, the impugned orders dated 18.01.2020 of the Principal Sub Court, Kollam in I.A.Nos.391 of 2017 and 392 of 2017 in O.S.No.33 of 2011 are set aside and the court below is directed to reconsider those interlocutory applications and pass a reasoned order, taking note of the law laid down in the decisions referred to supra, after affording both sides a reasonable opportunity to adduce oral and documentary evidence. Both parties shall appear before the court below on **10.03.2022** . The court below shall finally dispose of those interlocutory applications, as directed above, as expeditiously as possible, at any rate within a period of two months from 10.03.2022. Till ``` FAO NO. 71 OF 2020 ``` ``` -18- ``` such orders are passed, the undertaking given by the learned counsel for the respondent-plaintiff that no coercive steps shall be insisted against the defendant-judgment debtor in E.P. No.37 of 2016 in O.S.No.33 of 2011 before the Principal Sub Court, Kollam, shall continue to be in force. The appeal is allowed as above. ## **`Sd/-`** **ANIL K.NARENDRAN JUDGE** **Sd/-** **P.G. AJITHKUMAR JUDGE** uu