Muhammed RafeeK v. Fowjamma

## **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 28[TH] DAY OF SEPTEMBER 2022 / 6TH ASWINA, 1944** **MAT.APPEAL NO. 503 OF 2022 AGAINST THE ORDERS DATED 20.06.2022 IN I.A.NO.1 OF 2022 IN I.A.NO.830 OF 2018 IN O.P.NO.95 OF 2015 OF THE FAMILY COURT, PALAKKAD** ## **APPELLANT/PETITIONER/RESPONDENT:** ## **MUHAMMED RAFEEK** **AGED 46 YEARS, S/O CHELLA RAWTHER, AGED 46 YEARS, CANAL MUKKU, VANDITHAVALAM, CHITTUR TALUK, PALAKKAD DISTRICT, PIN - 678 534.** **BY ADVS. RAJESH SIVARAMANKUTTY VIJINA K. ARUL MURALIDHARAN** ## **RESPONDENT/RESPONDENT/PETITIONER:** **FOWJAMMA, AGED 44 YEARS, W/O MUHAMMED RAFEEK, FARSANA MANZIL, MANKAVU, EDAYA STREET, PALAKKAD DISTRICT, PIN - 678 001.** **BY ADVS. Jacob Sebastian K.V.WINSTON ANU JACOB** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 19.09.2022, ALONG WITH Mat.Appeal.504/2022, THE COURT ON 28.09.2022 DELIVERED THE FOLLOWING:** **2** Mat.Appeal Nos.503 & 504 of 2022 ## **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 28[TH] DAY OF SEPTEMBER 2022/6TH ASWINA,1944** **MAT.APPEAL NO. 504 OF 2022 AGAINST THE ORDERS DATED 20.06.2022 IN I.A.NO.1 OF 2022 IN I.A.NO.831 OF 2018 IN O.P.NO.95 OF 2015 OF THE FAMILY COURT, PALAKKAD** ## **APPELLANT/PETITIONER/RESPONDENT:** **MUHAMMED RAFEEK AGED 46 YEARS, S/O. CHELLA RAWTHER, CANAL MUKKU, VANDITHAVALAM, CHITTUR TALUK, PALAKKAD DISTRICT 678 534.** **BY ADVS. RAJESH SIVARAMANKUTTY VIJINA K. ARUL MURALIDHARAN** ## **RESPONDENT/RESPONDENT/PETITIONER:** **FOWJAMMA AGED 44 YEARS, W/O. MUHAMMED RAFEEK, FARSANA MANZIL, MANKAVU, EDAYAL STREET, PALAKKAD DISTRICT - 678 001.** **BY ADVS. JACOB SEBASTIAN K.V.WINSTON ANU JACOB** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 19.09.2022, ALONG WITH Mat.Appeal.503/2022, THE COURT ON 28.09.2022 DELIVERED THE FOLLOWING:** **3** Mat.Appeal Nos.503 & 504 of 2022 ## **JUDGMENT** ## Ajithkumar, J. The respondent in O.P.No.95 of 2015 on the file of the Family Court, Palakkad, is the appellant. That Original Petition was filed by the respondent for a decree of partition. It was decreed exparte on 29.11.2016 and a preliminary decree was passed. I.A.No.332 of 2017 was filed by the respondent for passing of a final decree. After getting a report from the Commissioner with regard to the metes and bounds partition a final decree was passed on 30.10.2020. The appellant remained exparte in the final decree proceedings also. Whileso, he filed I.A.No.830 of 2018 along with I.A.No.831 of 2018 for condonation of delay of 517 days and to set aside the preliminary decree. On 16.06.2018 the said applications were dismissed for default. Later, the appellant filed I.A.Nos.1 and 2 of 2022 seeking to restore the said applications, after condoning the delay of 1370 days. I.A.Nos.1 and 2 of 2022 were dismissed as per order dated 20.06.2022 and those orders are under challenge in these appeals filed under Section 19 of the Family Courts Act, 1984. **4** Mat.Appeal Nos.503 & 504 of 2022 2. The appeals were admitted to file on 19.07.2022. As per the order in I.A.No.1 of 2022 delivery of the property pursuant to the final decree was stayed. 3. Heard the learned counsel appearing for the appellant and also the learned counsel appearing for the respondent. 4. Dispute is between husband and wife. Wife seeks partition of the petition schedule property into two equal halves and allotting her one such share. The court, finding that the property stands in their joint name, ordered partition as per the preliminary decree dated 29.11.2016. It is an exparte decree. There is no case for the appellant that he did not receive summons in O.P.No.95 of 2015. He has engaged a counsel and was contesting the matter. But, eventually the original petition was decreed exparte. Thereupon, he filed I.A.Nos.830 and 831 of 2018. Since there occurred a delay of 517 days in filing the petition for setting aside the exparte decree, I.A.No.830 of 2018 was filed to condone the said delay. Those petitions were also not duly prosecuted, resulting in dismissal of the same for default on 16.06.2018. The **5** Mat.Appeal Nos.503 & 504 of 2022 appellant alleging fault on the part of his counsel that he failed to attend the case and inform him about the progress of the case in time, filed I.A.Nos.1 and 2 of 2022 seeking to condone the delay of 1370 days and to restore I.A.Nos.830 and 831 of 2018 on file. 5. The respondent would contend that the plea of the appellant that he did not get information from his counsel regarding the proceedings in the suit and also in the interlocutory applications, is totally incorrect. It was during the interregnum, I.A.No.332 of 2017 was filed by the respondent for getting a final decree passed. In that application, a Commissioner was deputed and the Commissioner, after measuring out the property, where the appellant has been conducting business, filed a report suggesting metes and bounds partition. A final decree was accordingly passed. The Commissioner inspected the property after giving notice to the appellant. In the light of those facts, it is not available for the appellant to contend that he was not aware of the proceedings and that his counsel was at fault. **6** Mat.Appeal Nos.503 & 504 of 2022 6. In filing I.A.No.831 of 2018 which is one for setting aside the preliminary decree there was a delay of 517 days. After dismissal of I.A.No.831 of 2018 for default on 16.06.2018, the appellant waited to file the present petitions for 1370 days. It was in the said period the final decree proceedings took place. Therefore, there is material on record to show prima facie that the appellant did have information regarding the proceedings before the court. The reasons set forth by the appellant for condonation of delay of 1370 days has to be considered in the light of the said facts. 7. There is no rule to guide as to when can courts record satisfaction about sufficiency of reason mentioned in Section 5 of the Limitation Act. It is for the court to consider in an objective way the materials before it and record its satisfaction or not about the sufficiency of the cause. Even if there have been intervals between the disabling factors, it is for the court to decide whether the person was justified in not approaching the court in time. 8. In **Collector, Land Acquisition v. Katiji [(1987) 2 SCC 107]** , in the context of Section 5 of the limitation Act, **7** Mat.Appeal Nos.503 & 504 of 2022 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. 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 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: **8** Mat.Appeal Nos.503 & 504 of 2022 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 cannot be allowed a totally unfettered free play. 21.8 There is a distinction between inordinate delay **9** Mat.Appeal Nos.503 & 504 of 2022 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] **10** Mat.Appeal Nos.503 & 504 of 2022 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. 1370 days is not a short period. Therefore, a strict approach in the matter is required. The appellant ought to have adduced evidence to substantiate the reasons stated by him. He, however, did not choose to let in any evidence. When his assertions in the affidavit filed in support of I.A.Nos.1 and **11** Mat.Appeal Nos.503 & 504 of 2022 2 of 2022 were denied by the respondent by filing a counter, it was incumbent upon the appellant to prove his assertions. In the absence of any evidence, it is not able to act upon the averments in the affidavit to find that the reasons stated for the delay of 1370 days are genuine or bona fide. In the light of the law laid down in the aforesaid decisions, the conclusion is irresistible. The order dated 20.06.2022 of the Family Court, Palakkad, dismissing I.A.Nos.1 and 2 of 2022 cannot be said to be incorrect. Hence, the appeals are liable only to be dismissed. The appeals are dismissed accordingly. ## **Sd/-** **ANIL K. NARENDRAN, JUDGE Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr