Muhammed Basheer Haji v Sajitha and Shaikhamol

## **`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 6[TH] DAY OF MARCH 2023 / 15TH PHALGUNA, 1944 ``` ``` OP (FC) NO.8OF 2023 ``` ``` AGAINST THE ORDER DATED 04.11.2022 IN I.A.NO.1 OF 2022 IN R.P.NO.5 OF 2022 IN O.P.NO.317 OF 2016 OF THE FAMILY ``` ## **`COURT, IRINJALAKUDA`** ## **`PETITIONER/PETITIONER/PETITIONER/RESPONDENT:`** ``` MUHAMMED BASHEER HAJI, AGED 62 YEARS S/O ABDUL ASEES HAJI, PERUNTHARA HOUSE, PERINJANAM P.O., KOVILAKAM, NEAR POLASSERY TEMPLE,PERINJANAM VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN - 680686 ``` ## **`BY ADV RAJESH CHAKYAT`** ## **`RESPONDENTS/RESPONDENTS/RESPONDENTS/PETITIONERS:`** - **`1 SAJITHA, AGED 53 YEARS, W/O PERUNTHARA VEETTIL MUHAMMED BASHEER, PUTHIYAKKAVU DESOM, PAPPINIVATTOM VILLAGE, PAPPINIVATTOM P.O, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN - 680685`** - **`2 SHAIKHAMOL, AGED 29 YEARS, D/O PERUNTHARA VEETTIL MUHAMMED BASHEER, PUTHIYAKKAVU DESOM, PAPPINIVATTOM VILLAGE, PAPPINIVATTOM P.O, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN - 680685`** ``` BY ADVS.AMRIN FATHIMA K.A.NOUSHAD(K/003014/1999) ``` ``` THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ``` ``` ON 06.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 O.P.(FC)No.8 of 2023 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioner is the respondent in O.P.No.317 of 2016 on the file of the Family Court, Irinjalakuda, which was one filed by the respondents herein-wife and minor child claiming Rs.5,000/- each towards future maintenance and a sum of Rs.21,50,000/- towards the education and marriage expenses of the 2[nd] respondent herein-daughter. In the said original petition, the petitioner entered appearance and filed objection. When the original petition was listed for trial, there was no appearance for the petitioner and hence, he was set ex-parte and an ex-parte decree was passed on 29.11.2019 in O.P.No.317 of 2016, whereby the petitioner is directed to pay Rs.5,000/- each to the respondents herein as monthly maintenance towards their personal requirements from the date of petition onwards and Rs.21,50,000/- towards education expenses, bus fare and marriage expenses of the 2[nd] respondent herein. Seeking an order to set aside that ex-parte decree, the petitioner filed R.P.No.5 of 2022, along with I.A.No.1 of 2022 seeking an order to condone to the delay of 831 days in filing the petition to set aside the ex-parte decree. 3 ## O.P.(FC)No.8 of 2023 Those petitions ended in dismissal by Ext.P6 common order dated 04.11.2022, which is under challenge in this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 2. On 11.01.2023, when this original petition came up for admission, this Court issued notice on admission to the respondents by speed post returnable within three weeks. This Court granted an interim stay of execution of Ext.P1 judgment, for a period of one month. The said interim order, which was extended by one month on 10.02.2023, is still in force. 3. Heard the learned counsel for the petitioner and also the learned counsel for the respondents. 4. The learned counsel for the petitioner would submit that though sufficient cause was shown in I.A.No.1 of 2022 for condoning the delay of 831 days in filing R.P.No.5 of 2022 and to set aside Ext.P1 ex-parte order, the Family Court committed grave error in dismissing those petitions by Ext.P6 order. 5. On the other hand, the learned counsel for the respondents would contend that in the absence of any sufficient cause shown for condoning the delay of 831 days in filing R.P.No.5 of 2022 and for the absence of the petitioner 4 ## O.P.(FC)No.8 of 2023 herein on 29.11.2019, i.e., the date on which the original petition was listed for trial, the reasoning of the Family Court in the impugned order dated 04.11.2022 cannot be said to be either perverse or patently illegal, warranting interference of this Court, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. 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 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. 5 O.P.(FC)No.8 of 2023 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 delay, sufficient cause is required to be shown, thereby explaining the sequence of events and the circumstances that led to the delay. 8. **In Re:Cognizance for Extension of Limitation [2021 (5) KHC 508]** a Three-Judge Bench of the Apex Court held that in computing the period of limitation for any suit, appeal, application or proceedings, the period from 15.03.2020 till 12.10.2021 shall stand excluded. 9. In **Collector, Land Acquisition v. Katiji [(1987)** **2 SCC 107]** , in the context of Section 5 of the limitation Act, 6 O.P.(FC)No.8 of 2023 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. 10. 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 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 7 O.P.(FC)No.8 of 2023 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 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 8 O.P.(FC)No.8 of 2023 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.” 11. In **Esha Bhattacharjee** , after summerising the principles applicable while dealing with an application for condonation of delay, the Apex Court added some more 9 O.P.(FC)No.8 of 2023 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. 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 10 O.P.(FC)No.8 of 2023 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.” 12. 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 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 11 O.P.(FC)No.8 of 2023 drafted with careful concern and no court shall deal with such an application in a routine manner. 13. In view of the direction contained in the order of the Apex Court in **In Re:Cognizance for Extension of Limitation [2021 (5) KHC 508]** , the actual extent of delay, after excluding the period of lockdown from 15.03.2020 to 12.10.2021 comes to only 255 days. 14. Viewed in the light of the law laid down in **Katiji [(1987) 2 SCC 107]** , **Esha Bhattacharjee [(2013) 12 SCC 649]** and **Rafeek [2021 (4) KHC 34** , we find that the delay of 255 days in filing R.P.No.5 of 2022 can be condoned on payment of cost, so as to enable the petitioner to defend the original petition raising appropriate contentions. In such circumstances, this original petition is allowed by setting aside Ext.P6 order dated 04.11.2022, on payment of a cost of Rs.10,000/- payable to the respondents, within a period of two weeks from the date of receipt of a certified copy of this judgment. On such payment being made and memo to that effect being filed before the Family Court, I.A.No.1 of 2022 and R.P.No.5 of 2022 will stand allowed by condoning the delay of 255 days and setting aside the ex parte decree dated 12 O.P.(FC)No.8 of 2023 29.11.2019, and O.P.No.317 of 2016 will stand restored to file. Thereafter, the Family Court shall finally dispose of O.P.No.317 of 2016 as expeditiously as possible, at any rate, within a period of three months, since the original petition is ripe for trial. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** AV/7/3 13 O.P.(FC)No.8 of 2023 ## **`APPENDIX OF OP (FC) 8/2023`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1 A TRUE COPY OF THE JUDGMENT IN O.P.NO.317/2016 ON THE FILE OF FAMILY COURT, IRINJALAKUDA DATED 29.11.2019 Exhibit P2 A TRUE COPY OF THE PETITION IN I.A.NO.1/2022 IN O.P.NO.317/2016 ON THE FILE OF FAMILY COURT, IRINJALAKUDA ``` ``` Exhibit P3 A TRUE COPY OF THE PETITION IN I.A.NO.5/2022 IN O.P.NO.317/2016 ON THE FILE OF FAMILY COURT, IRINJALAKUDA Exhibit P4 A TRUE COPY OF THE OBJECTION FILED IN I.A.NO.1/2022 IN O.P.NO.317/2016 Exhibit P5 A TRUE COPY OF THE OBJECTIONS FILED IN I.A.NO5/2022 IN O.P.NO.317/201 ``` ``` Exhibit P6 A TRUE COPY OF THE COMMON ORDER IN I.A.NO.1/2022 AND R.P.NO.5/2022 IN O.P.NO.317/2016 DATED 04.11.2022 ```