Mohanakumar v. Anil Kumar Valiyathil and Sheeja Beegam Payikuzhiyil Kulacha Peedikayil

1 F.A.O.No.20 of 2024 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ## **`THE HONOURABLE MR. JUSTICE G. GIRISH`** ``` MONDAY, THE 4[TH] DAY OF MARCH 2024 / 14TH PHALGUNA, 1945 ``` ``` F.A.O.NO.20OF 2024 ``` ``` ORDER DATED 29.09.2023 IN I.A.No.1 OF 2022 AND RP NO.10 OF 2022 IN O.S.NO.31 OF 2011 OF THE SUB COURT, MAVELIKKARA ``` ## **`APPELLANT/PETITIONER/1[ST] DEFENDANT:`** ``` MOHANAKUMAR, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER AGED 56 YEARS S/O KARUNAKARAN, THOTTUCHIRAYIL, ERUVA P.O., PATHIYOOR VILLAGE, KARTHIKAPALLY TALUK, ALAPPUZHA DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, MAHINKUTTY IQBAL, AGED 55 YEARS, PUTHUPURACKAL PUTHEN VEEDU, ERUVA P.O., PATHIYOOR, ALAPPUZHA DISTRICT, PIN - 690572 ``` ``` BY ADV JITHIN BABU A ``` ## **`RESPONDENT/COUNTER PETITIONER/PLAINTIFF/ADDL. 2[ND] DEFENDANT:`** - **`1 ANILKUMAR VALIYATHIL, FAROOK COLLEGE, VELLIPRAM AMSOM, KARIKKALLI DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN - 673632`** - **`2 SHEEJA BEEGAM PAYIKUZHIYIL KULACHA PEEDIKAYIL, OCHIRA P.O., KOLLAM DISTRICT, PIN - 690526`** ``` BY ADVS. M.PROMODH KUMAR MAYA CHANDRAN(K/2573/1999) ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON ``` ``` 04.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 F.A.O.No.20 of 2024 ## **JUDGMENT** ## **Anil K. Narendran, J** The appellant is the 1[st] defendant in O.S.No.31 of 2011 on the file of the Sub Court, Mavelikara, a suit filed by the 1[st] respondent herein-plaintiff against the appellant and another, i.e., the 2[nd] respondent herein, for realisation of Rs.13,40,000/together with interest towards advance sale consideration in respect of the plaint schedule property covered by document No.178 of 2003 of the Sub Registrar Office, Kareelakulangara. In that suit, the appellant-1[st] defendant filed a written statement, through his power of attorney holder. The 2[nd] defendant, who is the subsequent purchaser of the plaint schedule property, who got herself impleaded by the order dated 31.01.2012 in I.A.No.1321 of 2011, filed a written statement through her power of attorney. The appellant remained absent at the time of trial and he was set ex-parte and an ex-parte decree was passed on 21.12.2016, whereby the plaintiff is granted a decree to realise an amount of Rs.13,40,000/- together with 9% interest from the date of suit, i.e., 21.01.2011, till the date of decree, and interest at the rate of 6% per annum from the date of decree till realisation, together 3 F.A.O.No.20 of 2024 with cost from the appellant and charging upon the plaint schedule property. In order to set aside the ex-parte decree in O.S.No.31 of 2011, the appellant filed R.P.No.10 of 2022, invoking the provisions under Order IX Rule 13 of the Code of Civil Procedure, 1908, which was accompanied by I.A.No.1 of 2022, an application under Section 5 of the Limitation Act, 1963 to condone the delay of 5 years, 4 months and 5 days in filing the former application. The plaintiff opposed those interlocutory applications by filing counter affidavits. The appellant has not chosen to adduce any oral or documentary evidence. After considering the rival contentions, the Sub Court by a common order dated 29.09.2023 dismissed those interlocutory applications with cost to the plaintiff-counter petitioner. Feeling aggrieved, the appellant is before this Court in this appeal, invoking the provisions under Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908. 2. On 14.02.2024, when this appeal came up for admission, this Court issued notice on admission to the respondents by special messenger, returnable by 21.02.2024. 3. Heard the learned counsel for the appellant-1[st] defendant and also the learned counsel for the 1[st] respondentplaintiff. Despite service of notice, none appears for the 2[nd] 4 F.A.O.No.20 of 2024 respondent-2[nd] defendant. 4. The learned counsel for the appellant would contend that the impugned order dated 29.09.2023 of the Sub Court whereby R.P.No.10 of 2022 and I.A.No.1 of 2022 filed in O.S.No.31 of 2011 stand dismissed is per se arbitrary, illegal and unsustainable. The said order is liable to be interfered with by this Court, in exercise of the appellate jurisdiction under Order XLIII Rule 1(d) of the Code. The learned counsel would place reliance on the judgment of the Apex Court in **Shyam Kumar Gupta v. Shubham Jain [2023 KHC OnLine 6118]** and also a judgment of a learned Single Judge of Madras High Court in **Kumudha v. N. Kuppusamy Mudaliyar [2023 KHC OnLine 3435]** . 5. On the other hand, the learned counsel for the 1[st] respondent-plaintiff would place reliance on the judgment of a Division Bench of this Court in **Rafeek and another v. K. Kamarudeen and another [2021 (4) KHC 34]** . The learned counsel would contend that the Sub Court has stated valid reasons for dismissing the R.P.No.10 of 2022 and I.A.No.1 of 2022 filed by the appellant in O.S.No.31 of 2011. Therefore, no interference is warranted in the order dated 29.09.2023 of the Sub Court in those interlocutory applications. 5 F.A.O.No.20 of 2024 6. Order IX, Rule 13 of the Code provides for setting aside decree _ex parte_ 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 appeal has been disposed of on any ground other than the ground 6 F.A.O.No.20 of 2024 that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that _ex parte_ decree. ## 7. 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. 8. 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 defendant on the date fixed for hearing when _ex parte_ proceedings initiated against him, he cannot be penalised for his previous 7 F.A.O.No.20 of 2024 negligence which had been overlooked and thereby condoned earlier. In a case where the 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. 9. In **M. Shivananda v. M. Susheela and others [2021 (5) KHC 357]** a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party held that, Order IX, Rule 9 of the Code of Civil Procedure enables the court to set the dismissal aside, if the plaintiff satisfies the court that there was - sufficient cause for his non appearance when the suit was called on for hearing. On the other hand, Order IX, Rule 13 of the Code enables the court which passed a decree _ex parte_ to set it aside, if the defendant 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. Therefore, the principle laid down by the Apex Court in **G.P. Srivastava [(2000) 3 SCC 54]** , in the context of an application filed under Order IX, 8 F.A.O.No.20 of 2024 Rule 13 of the Code, apply with equal force in the consideration of an application filed under Order IX, Rule 9 of the Code. 10. 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 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. 11. 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 9 F.A.O.No.20 of 2024 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, sufficient cause is required to be shown, thereby explaining the sequence of events and the circumstances that led to the delay. 12. 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. 13. 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 10 F.A.O.No.20 of 2024 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. 14. Relying on the law laid down in the decisions referred to supra, a Division Bench of this Court in which one among us [Anil K. Narendran, J.] was a party held in **Rafeek and another** **v. K. Kamarudeen and another [2021 (4) KHC 34]** 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. An application for condonation of delay should be drafted with careful concern 11 F.A.O.No.20 of 2024 and no court shall deal with such an application in a routine manner. ## 15. In **Shyam Kumar Gupta [2023 SCC OnLine SC 111 :** **2023 KHC OnLine 6118]** , a decision relied on by the learned counsel for the appellant, the contention raised before the Apex Court was that the trial court as well as the High Court have taken a two rigid view of the matter and failed to consider that the amount directly due under the decree in question, being a sum of Rs.8,000/- towards arrears of rent and another sum of Rs.3,212/towards cost had indeed been deposited by the defendant; and in the given circumstances, the application for setting aside ex parte decree could not have been dismissed only for want of deposit of the amount towards further use and occupation of the suit shop room. It was also contended that, it had not been a case of wilfull avoidance of the requirements of Section 17 of the Provincial Small Courts Act, 1887 and in any case, the appellants, having deposited the amount towards rent/mesne profit until the month of April 2023, deserve an opportunity to conduct the suit on the merits. On the other hand, the contention of the respondent was that, for want of specific compliance of the requirements of Section 17 of the Act of 1887 at the time of filing of the application for 12 F.A.O.No.20 of 2024 setting aside ex parte decree, the view taken by the trial court, duly affirmed by the High Court, cannot be said to be unjustified. The law laid down by the Apex Court in that context has no application in the facts and circumstances of the case on hand and the said decision of the Apex Court in no manner support the argument of the learned counsel for the appellant that an inordinate delay of 5 years, 4 months and 5 days in filing an application to set aside ex parte decree can be condoned, even in the absence of sufficient cause shown by the appellant. ## 16. In **Kumudha [2023 KHC OnLine 3435]** , another decision relied on by the learned counsel for the appellant, a learned Single Judge of Madras High Court condoned the delay of 2155 days in filing the application for setting aside the ex parte decree, on payment of a cost of Rs.30,000/-. Though the reason for delay does not appear to be reasonable and no documents were produced to substantiate the same, the learned Single Judge condoned the delay on payment of a cost of Rs.30,000/- and the suit was restored after setting aside the ex parte decree. In view of the law laid down by the Apex Court in **Esha Bhattacharjee [(2013) 12 SCC 649]** and that laid down by this Court in **Rafeek** **[2021 (4) KHC 34]** we find no merit in the arguments advanced 13 F.A.O.No.20 of 2024 by the learned counsel for the appellant relying on the decision of the Madras High Court in **Kumudha [2023 KHC OnLine 3435]** . 17. In O.S.No.31 of 2011, the appellant-1[st] defendant filed written statement through his power of attorney. As rightly pointed out by the learned counsel for the 1[st] respondent-plaintiff, the appellant has not chosen to produce any documents before the trial court to show that he was working abroad during the relevant time or that he had undergone any treatment, as stated in the affidavit filed in support of the application for condonation of delay. Before the trial court, the appellant was represented by a power of attorney holder. He has not explained the circumstances in which that Power of Attorney holder was changed, at the time of filing the interlocutory applications under Order IX Rule 13 of the Code and Section 5 of the Limitation Act. 18. In the impugned order, the Sub Court has stated valid reasons for dismissing the application for condonation of delay, since the inordinate delay in filing the application to set aside the _ex parte_ decree could not be satisfactorily explained by the appellant-1[st] defendant. Even after excluding the period during Covid pandemic, in view of the law laid down by the Apex Court in ## **In Re: Cognizance for Extension of Limitation [2021 (5)** 14 F.A.O.No.20 of 2024 **KHC 508]** , the total extent of delay in this case is 1261 days. 19. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that in the absence of any sufficient cause stated in the affidavit filed in support of the application filed under Section 5 of the Limitation Act, the reasoning of the court below in the impugned order cannot be said to be either perverse or patently illegal, warranting interference in this appeal. In such circumstances, we find no reason to interfere with the impugned order dated 29.09.2023 passed by the Sub Court in R.P.No.10 of 2022 and I.A.No.1 of 2022 in O.S.No.31 of 2011. In the result, this appeal fails and the same is accordingly dismissed. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **G. GIRISH, JUDGE** MIN 15 F.A.O.No.20 of 2024 ## **`APPENDIX OF FAO 20/2024`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE A1 TRUE COPY OF THE JUDGEMENT DATED 21.12.2016 IN O.S.NO.31/2011 BEFORE THE SUB COURT MAVELIKARA. ```