Mary Paul @ Mary Paily and Bini Paul v Benhur Traders & Investment (Pvt) Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 16[TH] DAY OF JUNE 2023 / 26TH JYAISHTA, 1945 F.A.O. NO. 225 OF 2016** **AGAINST THE ORDERS DATED 20.02.2016 IN I.A.NOS.1255 AND 1256 OF 2014 IN O.S.NO.42 OF 2010 ON THE SUB COURT,** ## **MUVATTUPUZHA** ## **APPELLANTS/PETITIONERS:** - **1 MARY PAUL @ MARY PAILY AGED 60 YEARS, W/O. LATE C.K.PAILY, CHULLICKAL HOUSE, THANGALAM DESOM, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT-686 691.** - **2 BINI PAUL** - **AGED 34 YEARS, D/O. LATE C.K.PAILY, CHULLICKAL HOUSE, THANGALAM DESOM, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT-686 691.** **BY ADVS.** **SRI.REJI GEORGE SRI.BINOY DAVIS SHRI.NASEER MOIDU** ## **RESPONDENT/RESPONDENT:** **BENHUR TRADERS & INVESTMENT (PVT) LTD COMPANY MAS BUILDING, KANAYANNUR TALUK, ERNAKULAM, KOCHI-682 018,REPRESENTED BY ITS POWER OF ATTORNEY HOLDER PRAKASH KUMAR, S/O. LATE BHASKARAN NAIR, PADINJARE AMBATTIL HOUSE, EDAPPALLY NORTH VILLAGE, KANAYANNUR TALUK, ERNAKULAM-682 024.** 2 F.A.O.No.225 of 2016 **BY ADVS.** **SRI.JIMMY JOHN VELLANIKARAN SRI.V.L.THOMAS** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 16.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 F.A.O.No.225 of 2016 ## **JUDGMENT** ## P.G. Ajithkumar, J. This is an appeal filed under Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908. The defendants 1 and 4 in O.S.No.42 of 2010 on the files of the Sub Court, Muvattupuzha are the appellants. The suit filed by the respondent was decreed exparte. The appellants filed I.A.Nos.1255 and 1256 of 2014 seeking to set aside the exparte decree and to condone the delay of 1193 days. The Sub Court dismissed the interlocutory applications as per order dated 20.02.2016. The said orders are under challenge in this appeal. 2. This appeal was admitted to file on 03.10.2016. 3. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent. 4. The suit was one for realisation of a sum of Rs.8,24,811/- along with interest and costs. The husband of the 1[st] appellant and the father of the 2[nd] appellant, Sri.C.K.Paily, was the 5[th] defendant in the suit. He died on 07.08.2013. He was a chronic kidney patient. It is the case of 4 F.A.O.No.225 of 2016 the appellants that although ailing, the 5[th] defendant was conducting the suit for and on behalf of other defendants also. But the 5[th] defendant could not properly instruct their counsel and that resulted in decreeing the suit exparte on 13.07.2011. 5. The contentions of the appellants were refuted by the respondent. The learned Sub Judge holding that the appellants failed to produce any evidence in order to substantiate their contentions regarding the ailment of the 5[th] defendant, dismissed the applications. 6. The learned counsel appearing for the appellants would submit that no opportunity to adduce evidence was afforded by the court below and the applications were dismissed without considering any of the contentions of the appellants. The appellants produced Annexures 1 to 3 in this appeal to substantiate their contentions regarding ailment of the 5[th] defendant and his eventual death on 07.08.2013. The learned counsel accordingly would submit that the order of the court below requires interference. 7. The learned counsel appearing for the respondent, on the other hand, would submit that the suit was decreed exparte on 13.07.2011; whereas the 5[th] respondent was said 5 F.A.O.No.225 of 2016 to be under treatment during subsequent periods only and as such the reasons now put forward by the appellants are lame excuses. It is urged that the attempt of the appellants is to protract execution of the decree, and therefore, the appeal lacks merits. 8. The fact that the 5[th] respondent expired on 07.08.2013 is not in dispute. From Annexures 1 and 2, it is seen that the 5[th] defendant was suffering from renal disease and was under prolonged treatment and medication. Of course, the appellant were at fault in not approaching the court below in time and producing the documents substantiating their plea regarding ailment and treatment of the 5[th] defendant. The question is whether for that reason the petitions they had filed would have to be dismissed. 9. In **Robin Thapa v. Rohit Dora [(2019) 7 SCC 359]** the Apex Court held that, ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that, as far as possible, adjudication be done on merits. Here the delay is 1193 days. Certainly the delay is not 6 F.A.O.No.225 of 2016 of a short duration. The question is whether the reasons stated for the delay are reasonably substantiated or not. 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 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 summarising 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 7 F.A.O.No.225 of 2016 ## reads thus; - “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 8 F.A.O.No.225 of 2016 ## cannot be allowed a totally unfettered free play. 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.” [underlines supplied] 9 F.A.O.No.225 of 2016 ## 12. In **Rafeek and another v. K. Kamarudeen and** **another [2021 (4) KHC 34]** a Division Bench of this Court 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 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. 13. As pointed out above, Annexures 1 and 2 produced by the appellant would show that the 5[th] defendant was having serious ailment and had to have continuous medication and other medical procedures. The appellants are the wife and son of the 5[th] defendant. Considering the circumstances pointed out by the appellants, it is probable that the case would have been defended by the 5[th] defendant for others also. When the materials on record probabilises that there were factors impeding the 5[th] 10 F.A.O.No.225 of 2016 defendant had inconveniences from appearing before the court promptly, a lenient view is required to be taken in the matter. Hence, we are of the view that the delay of 1193 days in filing the application for setting aside the exparte decree dated 13.07.2011 can be condoned on payment of costs in order to mitigate the inconvenience caused to the respondent. 14. Accordingly, this appeal is allowed. The order of the Sub Court, Muvattupuzha dated 20.02.2016 is set aside on payment of a cost of Rs.10,000/- (Rupees ten thousand only) to the respondent. On payment of the costs by the appellants to the respondent, which shall be within a period of two weeks, I.A.Nos.1255 and 1256 of 2014 will stand allowed. Thereupon, the Sub Court, Muvattupuzha will restore on file O.S.No.42 of 2010 and proceed with it in accordance with law. It being an old case, the Sub Court, Muvattupuzha shall make every endeavour to dispose of O.S.No.42 of 2010 within a period of four months. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr