Mat.Appeal No.92 of 2018

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 20[TH] DAY OF MARCH 2023 / 29TH PHALGUNA, 1944 MAT.APPEAL NO. 92 OF 2018** **AGAINST THE ORDER DATED 09.10.2014 IN I.A.NOS.1231 AND 1232 OF 2013 IN O.P.NO.203 OF 2012 ON THE FILE OF THE FAMILY COURT, PALAKKAD** ## **APPELLANTS:** - **1 SHAMEER** - **S/O. ABDUL KHADAR, WALAYAR DAM ROAD,WALAYAR P.O, PALAKKAD DISTRICT - 678 003.** - **2 ABDUL KHADAR** - **S/O. SAIDUMOHAMMED, WALAYAR DAM ROAD,WALAYAR P.O, PALAKKAD - 678 003.** - **3 SARA W/O. ABDUL KHADAR, WALAYAR DAM ROAD,WALAYAR P.O, PALAKKAD - 678 003.** - **4 RAJEENA** - **W/O. ABUBACKAR, SIDHIQUE, WALAYAR DAM ROAD, WALAYAR P.O, PALAKKAD - 678 003.** **BY ADV SMT.P.LISSY JOSE.** ## **RESPONDENT:** **ARIFA W/O. SHAMEER, FATHIMA MANZIL, NEAR GVHSS,KANJIKKODE P.O, PALAKKAD.** 2 Mat.Appeal No.92 of 2018 **BY ADVS. SRI.BINOY VASUDEVAN SRI.R.MANIKANTAN** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 20.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 Mat.Appeal No.92 of 2018 ## **ORDER/JUDGMENT** ## P.G. Ajithkumar, J. ## C.M Application No.221 of 2018 in Mat.Appeal No.92 of 2018 There is a delay of 1050 days in filing the appeal. The appellants filed this application under Section 5 of the Limitation Act seeking to condone the said delay. 2. The appeal is filed challenging the order dated 09.10.2014 in I.A.Nos.1231 and 1232 of 2013 in O.P. No.203 of 2012 on the file of the Family Court, Palakkad. The said original petition was decreed ex parte and in order to set aside the said ex parte decree, after condoning the delay, I.A. Nos.1231 and 1232 of 2013 were filed by the appellant. The Family Court after considering that matter in detail, refused to condone the delay. Accordingly, I.A.No.1231 of 2013, the petition filed under Section 5 of the Limitation Act, was dismissed as per order dated 09.10.2014 and consequently I.A.No.1232 of 2013 which was one for setting aside the decree was also dismissed. The said orders are under challenge in this appeal. There occurred a delay of 1050 days in filing the appeal. 4 Mat.Appeal No.92 of 2018 3. The respondent filed a counter affidavit refuting the reasons stated by the appellants for the delay. 4. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent. 5. The appellants would contend that there were attempts to have an amicable settlement between the parties and while so the respondent clandestinely took steps for execution of the decree. The appellants therefore filed O.P. (FC)No. 265 of 2017 before this Court and obtained time to file an appeal. The appellants maintained that there was no laches or negligence on their part in filing the appeal. The respondent would contend that there was no such settlement talks and the execution petition was filed only because the appellants failed to honour the directions in the decree. Respondent also would submit that O.P.(FC) No.265 of 2017 was disposed of without giving notice to her and that no permission was granted by this Court to the appellants as they claimed as per the judgment in that original petition, which she produced along with her counter affidavit. 5 Mat.Appeal No.92 of 2018 6. It is seen that O.P.(FC) No.265 of 2017 was filed for an order directing the Execution Court not to proceed with sale of property in execution of the decree in question till the 1st appellant gets a certified copy of the order in I.A. Nos.1231 and 1232 of 2013. This Court as per Annexure A judgment dated 05.05.2017, deferred sale upto 08.06.2017. No permission or time to file appeal as claimed by the appellants was granted by this Court as per the said judgment. The contention that there were mediation talks and therefore the appellants did not file any appeal immediately is stoutly denied by the respondent. Absolutely no material has been produced to show that there were mediation talks between the parties. 7. In such circumstances, we are of the view that there exists no reason, much less sufficient reason to condone the delay of 1050 days which, at any standard, is inordinate. 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 6 Mat.Appeal No.92 of 2018 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. 9. 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 reads thus; - “21. From the aforesaid authorities the principles that can broadly be culled out are: - 21.1 There should be a liberal, pragmatic, justice- 7 Mat.Appeal No.92 of 2018 oriented, 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. 21.8 There is a distinction between inordinate delay 8 Mat.Appeal No.92 of 2018 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 Mat.Appeal No.92 of 2018 10. 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. 11. The delay is of 1050 days. It is a long period. In the light of the law laid down in the aforesaid decisions, a strict approach is required in this case. It may be noted that this appeal along with C.M. Application No.221 of 2018 was filed as early as on 20.11.2017. The respondent has filed a 10 Mat.Appeal No.92 of 2018 counter affidavit on 30.08.2019. The appellants did not take any steps to get the C.M.Application heard and disposed of during all these periods. That also indicates that the appellants were not diligent in prosecuting the appeal. 12. In such circumstances, we are of the view that the delay of 1050 days is not liable to be condoned. C.M.Application is accordingly dismissed. ## Mat. Appeal No.92 of 2018 Delay of 1050 days in filing the appeal is not condoned and C.M.Application No.221 of 2018 filed by the appellants in that regard is dismissed. Consequently this appeal is dismissed. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** pv/dkr