MAT APPEAL NO.183 OF 2021

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ## **`&`** ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` WEDNESDAY, THE 15[TH] DAY OF FEBRUARY 2023 / 26TH MAGHA, 1944 ``` ## **`MAT.APPEAL NO.183 OF 2021`** ``` AGAINST THE ORDER/JUDGMENT DATED 29.03.2019 IN IA ``` ``` NO.2953/2018 IN OP 632/2017 AND DATED 30.04.2019 IN IA NO.2941/2018 IN OP 632/2017 OF FAMILY COURT,ERNAKULAM ``` ## **`APPELLANT/PETITIONER/R2:`** ``` V.K.MARY, AGED 58 YEARS ``` ``` W/O ANTONY, VADAKKE KURIKAYIL HOUSE, PATHAM MILE, UDAYAMPEROOR VILLAGE, PATHAM MILE BHAGAM, KANAYANNUR TALUK, ERNAKULAM DISTRICT ``` ``` BY ADVS. ``` ``` V.N.SANKARJEE SRI.V.N.MADHUSUDANAN SMT.R.UDAYA JYOTHI SMT.M.SUSEELA SMT. KEERTHI B. CHANDRAN SHRI.VIJAYAN PILLAI P.K. SRI.C.PURUSHOTHAMAN NAIR SRI.M.M.VINOD ``` ## **`RESPONDENTS/RESPONDENTS/PETITIONER AND R1:`** - **`1 VIJI, W/O JINEESH, KARINILATHU HOUSE, SREE GURUVAYOORAPPAN ROAD, CHAKKANKULANGARA, TRIPUNITHURA, ERNAKULAM-682 306.`** - **`2 AUGUSTINE ALIAS JINEESH, AGED 31 YEARS, VADAKKEKURIKAYIL HOUSE, UDAYAMPERUR, PATHAM MILE BHAGAM, UDAYAMPEROOR, TRIPUNITHURA, ERNAKULAM-682 306.`** ``` BY ADVS. ``` - **`V.K.BALACHANDRAN N.C.SAJITH N.V.KURIAKOSE`** ``` THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON ``` ``` 15.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Mat Appeal 183 of 2021 2 ## **JUDGMENT** Anil K. Narendran, J. The appellant is the 2[nd] respondent in O.P.No.632 of 2017 on the file of Family Court, Ernakulam, which was one filed by the 1[st] respondent herein, wife of the 1[st] respondent in that original petition, who is arrayed as the 2[nd] respondent in this appeal, for recovery of gold ornaments and money. In that original petition, the Family Court passed an _ex parte_ decree on 29.05.2017, whereby the 1[st] respondent is entitled to recover a sum of Rs.2,00,000/- with interest at the rate of 6% per annum from the date of the original petition till its realisation in full and 15 sovereigns of gold ornaments or its value on the date of that decree, from the appellant and the 2[nd] respondent herein and their assets, both movables and immovables. 2. The appellant filed I.A.No.2941 of 2018 in O.P.No.632 of 2017, invoking the provisions under Order IX Rule 13 of the Code of Civil Procedure, 1908, to set aside the _ex parte_ decree in O.P.No.632 of 2017. The appellant filed I.A.No.2953 of 2018 in O.P.No.632 of 2017, invoking the provisions under Section 5 of the Limitation Act, 1963 for condonation of delay of 379 days in filing Mat Appeal 183 of 2021 3 I.A.No.2941 of 2018. Those interlocutory applications ended in dismissal by the orders dated 30.04.2019 and 29.03.2019, respectively, which are under challenge in this appeal filed invoking the provisions under Section 19(1) of the Family Courts Act, 1984. 3. This appeal was filed along with C.M.Appl.No.1 of 2021 for condonation of delay of 639 days, which was condoned by the order dated 10.02.2023, on payment of costs of Rs.2,000/-, which the appellant has already paid. 4. Heard the learned counsel for the appellant and also the learned counsel for the 1[st] respondent. 5. The issue that arises for consideration in this appeal is as to whether any interference is warranted in the orders of the Family Court, Ernakulam dated 29.03.2019 in I.A.No.2953 of 2018 in O.P.No.632 of 2017 and 30.04.2019 in I.A.No.2941 of 2018 in O.P.No.632 of 2017. 6. 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 Mat Appeal 183 of 2021 4 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 satisfies the court that he had sufficient 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. 7. 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 Mat Appeal 183 of 2021 5 delay, sufficient cause is required to be shown, thereby explaining the sequence of events and the circumstances that led to the delay. 8. 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. 9. 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 Mat Appeal 183 of 2021 6 ## 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 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. Mat Appeal 183 of 2021 7 21.7 The concept of liberal approach has to encapsule the conception of reasonableness and it 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. Mat Appeal 183 of 2021 8 21.13 The State or a public body or an entity representing a collective cause should be given some acceptable latitude.” 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 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. Mat Appeal 183 of 2021 9 11. Order IX, Rule 13 of the Code provides for setting aside of _ex parte_ decree against defendant. As per sub-rule (1) of Rule 13, in any case in which a decree is passed _ex parte_ against a defendant, he may apply to the court which the decree was passed for an order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. As per the first proviso to sub-rule (1), where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also. As per the second proviso to sub-rule (1), no court shall set aside a decree passed _ex parte_ merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. As per the Explanation, where there has been an appeal against a decree passed _ex parte_ under this rule, and the Mat Appeal 183 of 2021 10 appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that _ex parte_ decree. 12. In **G.P. Srivastava v. R.K. Raizada [(2000) 3 SCC 54]** in the context of an application filed under Order IX, Rule 13 of the Code, for setting aside an _ex parte_ decree, the Apex Court held that, the word ‘was prevented by any sufficient cause from appearing’ occurring in Order IX, Rule 13 of the Code must be liberally construed to enable the court to do complete justice between the parties, particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order IX, Rule 13 of the Code has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. 13. In **G.P. Srivastava** , the Apex Court held further that, ‘sufficient cause’ for non-appearance refers to the date on which the absence was made a ground for proceeding _ex parte_ and cannot be stretched to rely upon other circumstances anterior in time. If ‘sufficient cause’ is made out for non-appearance of the Mat Appeal 183 of 2021 11 defendant on the date fixed for hearing when _ex parte_ proceedings initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the _lis_ decided on merits. ## 14. In **Peeves Enterprises v. Muhammed Ashraf [2015** **(3) KHC 981]** , relying on the law laid down by the Apex Court in **G.P. Srivastava** , a Division Bench of this Court held that, on an application filed under Order IX, Rule 13 of the Code of Civil Procedure, the court has to find out whether the erring party has made out sufficient cause for setting aside the _ex parte_ decree. When no negligence or inaction is imputable to the erring party and the absence was not mala fide or intentional, the discretion has to be exercised in his favour, especially when the application is within the statutory time limit. In appropriate cases, the plaintiff can be compensated by adequate costs for the loss of time and the Mat Appeal 183 of 2021 12 inconvenience caused to him. But any such condition shall not be too onerous. 15. By the order dated 29.03.2019, the Family Court dismissed I.A.No.2953 of 2018 in O.P.No.632 of 2017, whereby the appellant/applicant was directed to comply with the direction of this Court, or else, the interlocutory application filed under Section 5 of the Limitation Act, 1963 for condonation of delay of 379 days in filing I.A.No.2941 of 2018 filed under Order IX, Rule 13 of the Code of Civil Procedure, 1908 to set aside the _ex parte_ decree in O.P.No.632 of 2017 will stand dismissed. Thereafter, by the order dated 30.04.2019, the Family Court dismissed I.A.No.2941 of 2018, in view of the order in I.A.No.2953 of 2018. 16. The order of this Court, referred to in the order dated 29.03.2019 of the Family Court in I.A.No.2953 of 2018 in O.P.No.632 of 2017, is placed on record as Annexure R1(a) along with the counter affidavit filed by the respondent herein, in C.M.Appl.No.1 of 2021. The said judgment is one passed in O.P.(Crl.)No.339 of 2017 filed by the 2[nd] respondent herein, son of the appellant, challenging the order dated 17.05.2017 of the Family Court, Ernakulam in M.C.No.441 of 2016, whereby he was Mat Appeal 183 of 2021 13 required to clear the arrears of maintenance of Rs.50,000/payable to the 1[st] respondent herein and the minor child. By Annexure R1(a) judgment, the 2[nd] respondent is directed to pay the 1[st] respondent herein and the minor child a total sum of Rs.6,000/- per month towards interim maintenance. Non-payment of maintenance by the 2[nd] respondent herein, son of the appellant, is not a ground to reject the application made by the appellant to set aside the _ex parte_ decree passed against her in O.P.No.632 of 2017 or for condonation of delay in filing the application filed for setting aside that _ex parte_ decree passed against her. The reasoning of the Family Court in the impugned orders is perverse and patently illegal, which cannot be sustained in law. 17. Since the appellant has already paid Rs.2,000/- as costs to the 1[st] respondent for condonation of delay in filing this appeal, this appeal is allowed by setting aside the order dated 29.03.2019 in I.A.No.2953 of 2018 and the order 30.04.2019 in I.A.No.2941 of 2018 in O.P.No.632 of 2017, thereby setting aside the _ex parte_ passed by the Family Court in O.P.No.632 of 2017, against the appellant herein/2[nd] respondent before the Family Court, after condoning the delay of 379 days in filing in I.A.No.2941 of 2018. Mat Appeal 183 of 2021 14 Consequently, I.A.No.2941 of 2018 and I.A.No.2953 of 2018 in O.P.No.632 of 2017 will stand allowed to the above extent, without interfering with the _ex parte_ decree passed against the 2[nd] respondent herein, son of the appellant. Since the original petition is of the year 2017, the Family Court, Ernakulam shall finally dispose of O.P.No.632 of 2017, as expeditiously as possible, at any rate, within a period of four months from the date of production of a certified copy of this judgment. Sd/- **ANIL K. NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** jg Mat Appeal 183 of 2021 15 ## **`APPENDIX OF MAT.APPEAL 183/2021`** ``` PETITIONER ANNEXURES Annexure-I TRUE COPY OF THE NOTICE DATED 23.11.2022 IN E.P.NO. 11/2021 IN O.P. NO.637/2017 BEFORE THE FAMILY COURT ERNAKULAM WITH ATTACHMENT SCHEDULE DATED 16.3.2017 RESPONDENT ANNEXURES Annexure-R1(a) True copy of the Judgment in O.P. (Crl.) No.339/2017 dated 21.6.2017 ```