Muraleedharan Nair v. Manjukumary T. M.

# **`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 30[TH] DAY OF JANUARY 2023 / 10TH MAGHA, 1944 OP (FC) NO.55OF 2023 ``` ``` I.A.No.4269 OF 2019 AND I.A.NO.4270 OF 2019 IN O.P.NO.1133 OF 2013 ON THE FILE OF FAMILY COURT, ATTINGAL ``` ``` PETITIONER/PETITIONER/RESPONDENT: ``` ``` MURALEEDHARAN NAIR J AGED 51 YEARS S/O. JANARDHANAN NAIR, CHARUVILA VEEDU, NEERAMANKADAVU P.O., KALLARA VILLAGE, THIRUVANANTHAPURAM DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER AND WIFE DEEPA, W/O.MURALEEDHARAN NAIR, AGED 47 YEARS, KUNNILVEEDU, KULAMANKUZHY, MARUTHAMAN, KALLARA VILLAGE, NEDUMANGADU, THIRUVANANTHAPURAM, PIN - 695101 ``` ``` BY ADVS. G.SUDHEER R.HARIKRISHNAN (H-308) ``` ``` RESPONDENT/RESPONDENT/PETITIONER: ``` ``` MANJUKUMARY.T.M AGED 41 YEARS D/O.THANKAMANI AMMA, VAISHNAVAM, PULIMOODU, MANJUMALA P.O., KEEZHETHONNAKAL VILLAGE, ATTINGAL, THIRUVANANTHAPURAM, PIN - 695101 ``` ``` THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 30.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` OP(FC) No. 55 OF 2023 ## **J U D G M E N T** ## Anil K.Narendran, J. The petitioner is the respondent in O.P.No.1133 of 2013 on the file of the Family Court, Attingal, which is one filed by the respondent herein for recovery of gold ornaments and money. The said original petition along with connected matter O.P.(HMA)No.1134 of 2013, which was one filed by the respondent herein, seeking a decree of divorce to dissolve the marriage solemnised between the parties on 05.09.2003 was decreed ex parte by a common judgment dated 30.09.2013 of the Family Court, Attingal. In O.P.No.1133 of 2013, the respondent herein is allowed to recover 40 sovereigns of the gold ornaments or its market value at the time of realisation from the petitioner herein and his assets. In O.P.1134 of 2013, the Family Court granted a decree of divorce, dissolving the marriage solemnised between the petitioner and the respondent, under Section 13(1)(ia) of the Hindu Marriage Act, on the ground of cruelty, with effect from the date of decree. To set aside the ex parte decree in O.P.No.1133 of 2013, the petitioner filed I.A.No.4270 of 2019 (Ext.P5) invoking the provisions under Order IX Rule 13 of the Code of Civil Procedure, ``` 3 ``` OP(FC) No. 55 OF 2023 1908. The said application is accompanied by I.A.No.4269 of 2019 (Ext.P6), invoking the provisions under Sections 5 of the Limitation Act to condone the delay of 2224 days in filing the application to set aside the ex parte decree. In Ext.P6 interlocutory application, the respondent filed Ext.P7 objection dated 22.04.2022. The grievance of the petitioner is that, during the pendency of Ext.P5 and P6 interlocutory applications, the Family Court is proceeding with E.P.No.91 of 2017 (Ext.P4). In such circumstances, the petitioner has filed this original petition, invoking the supervisory jurisdiction under Article 227 of the Constitution of India seeking an order directing the Family Court to consider and pass appropriate orders on Exts.P5 and P6 interlocutory applications, as expeditiously as possible; and to direct the Family Court to keep in abeyance the proceedings in E.P.No.91 of 2017 (Ext.P4) till orders are passed on Exts.P5 and P6 interlocutory applications. 2. Heard the learned counsel for the petitioner. Considering the nature of relief proposed to be granted, service of notice is dispensed with. 3. To set aside the ex parte decree in O.P.No.1133 of 2013 of the Family Court, Attingal, the petitioner filed ``` 4 ``` OP(FC) No. 55 OF 2023 I.A.No.4270 of 2019 (Ext.P5) which accompanied by I.A.No.4269 of 2019 (Ext.P6) to condone the delay of 2224 days in filing the petition to set aside the exparte decree. Those interlocutory applications filed in the year 2019 are still pending consideration before the Family Court. In I.A.No.4270 of 2019, the respondent has already filed a detailed objection (Ext.P7), which is one dated 22.04.2022. ## 4. 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: ``` 5 ``` OP(FC) No. 55 OF 2023 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 and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to ``` 6 ``` OP(FC) No. 55 OF 2023 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] 5. In **Rafeek and another v. K. Kamarudeen and another [2021 (4) KHC 34]** a Division Bench of this Court ``` 7 ``` OP(FC) No. 55 OF 2023 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. 6. Having considered the submissions made by the learned counsel for the petitioner, we deem it appropriate to dispose of this original petition, by directing the Family Court, Attingal to consider and pass appropriate orders on Exts.P5 and P6 interlocutory applications, after considering Ext.P7 objection file by respondent, as expeditiously as possible at any rate within a period of one month from this date. Till such orders are passed, any coercive steps in E.P.No.91 of 2017 in O.P.No.1133 of 2013 shall be deferred by the Family Court, ``` 8 ``` OP(FC) No. 55 OF 2023 Attingal. Registry to communicate a copy of this order to the Family Court, Attingal. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** PV ``` 9 ``` OP(FC) No. 55 OF 2023 ## **`APPENDIX OF OP (FC) 55/2023`** ## **`PETITIONER’S EXHIBITS`** ``` ExhibitP1COPY OF THE POWER OF ATTORNEY EXECUTED BY PETITIONER IN FAVOR OF HIS WIFE DEEPA ExhibitP2COPY OF THE O.P. NO. 1133/2013 ON THE FILE OF THE FAMILY COURT ,ATTINGAL ExhibitP3COPY OF COMMON JUDGMENT IN O.P. NO. 1133/2013 AND 1134/2013 DATED 30.9.2013 Exhibit4COPY OF THE NOTICE AND EP 91/2017 ON THE FILE OF FAMILY COURT, ATTINGAL ExhibitP5COPY OF I.A. NO. 4270/2019 IN O.P. NO. 1133/2013 ON THE FILE OF FAMILY COURT, ATTINGAL Exhibit P6COPY OF I.A. NO. 4269/2019 IN O.P. NO. 1133/2013 ON THE FILE OF FAMILY COURT, ATTINGAL Exhibit P7COPY OF OBJECTION FILED BY THE RESPONDENT IN IA 4270/2019 ```