Musthafa and others v. A.V. Khairuneesa

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 22[ND] DAY OF SEPTEMBER 2022 / 31ST BHADRA, 1944 MAT.APPEAL NO. 214 OF 2022** **AGAINST THE ORDER DATED 15.01.2022 IN I.A.NOS.1 AND 2 OF 2021 IN O.P.NO.736 OF 2017 OF THE FAMILY COURT, MALAPPURAM** **APPELLANTS:** - **1 MUSTHAFA, AGED 36 YEARS, S/O.KUZHIMBADATH KUHAMMEDKUTTY, CHOORAPPETTY HOUSE, KARIPPUR P.O., MALAPPURAM DISTRICT, PIN – 673647.** - **2 RASIYA, AGED 43 YEARS, D/O.KUZHIMBADATH KUHAMMEDKUTTY, CHOORAPPETTY HOUSE, KARIPPUR P.O., MALAPPURAM DISTRICT, PIN – 673647.** - **3 RAMLA, AGED 41 YEARS, W/O.NASAR, CHOORAPPARAMBIL HOUSE, OMANUR P.O., MALAPPURAM DISTRICT, PIN – 673645.** - **4 ABDUL SHAMEER, AGED 38 YEARS, S/O. KUZHIMBADATH MUHAMMEDKUTTY, CHOORAPETTY HOUSE, KARIPPUR P.O., MALAPPURAM DISTRICT, PIN – 673647.** - **5 RUKSANA, AGED 30 YEARS, W/O.YUNUS C., CHUNENGAL HOUSE, NAMBOLANKUNNU, CALICUR AIRPORT P.O., MALAPPURAM DISTRICT, PIN – 673647.** - **6 FERSANA, AGED 29 YEARS, W/O.SHIHAB MUSILIYARAKATH, THAITHODTTAM, KONDOTTY P.O., MALAPPURAM DISTRICT, PIN – 673638.** **2** Mat.Appeal No.214 of 2022 - **7 FATHIMA ANNATH K., AGED 21 YEARS, W/O.ABDUSHABEER O.P., PADINHARETHODI HOUSE,** **PALLIKKAL P.O., MALAPPURAM DISTRICT, PIN – 676517.** - **8 KHADEEJA, AGED 66 YEARS, W/O.MUHAMMEDKUTTY, CHOORAPPETTY HOUSE, KARIPPUR P.O., MALAPPURAM DISTRICT, PIN – 673647.** **BY ADV K.RAKESH** ## **RESPONDENT:** **A.V. KHAIRUNEESA AGED 29 YEARS, D/O.ABDURAHIMAN,** **APPATTU VADAKKEKARA HOUSE, CHELEMBRA P.O., MALAPPURAM DISTRICT, PIN – 673634.** **BY ADV P.K.MOHAMED JAMEEL** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 22.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **3** Mat.Appeal No.214 of 2022 ## **JUDGMENT** ## Ajithkumar, J. Challenge in this appeal filed under Section 19 of the Family Courts Act, 1984, is the legality and correctness of the common order dated 15.01.2022 of the Family Court, Malappuram, in I.A.Nos.1 and 2 of 2021 in O.P.No.736 of 2017. 2. The respondent-wife filed O.P.No.736 of 2017 seeking a decree for recovery of money and gold ornaments said to have been given at the time of her marriage to the 1[st] appellant-husband. Appellants 2 to 8 are the legal representatives of the 2[nd] respondent in the Original Petition, who died during pendency of the petition. The Original Petition was decreed exparte on 30.12.2019. The appellants filed I.A.Nos.1 and 2 of 2021 seeking to condone the delay of 649 days and to set aside the said decree. As per the impugned order, both the said applications were dismissed. 3. On 21.03.2022, the appeal was admitted. Further proceedings in O.P.No.736 of 2017 were stayed for a period of **4** Mat.Appeal No.214 of 2022 one month as per order in I.A.No.1 of 2022. Interim order has been extended from time to time. 4. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 5. The reason stated for non-appearance of the appellants before the court when O.P.No.736 of 2017 was taken up for hearing and also the delay in filing the petition for setting aside the exparte decree is that the 1[st] appellanthusband has been suffering from mental health issues, for which he had to undergo treatment. Being the husband, he has been conducting the case, but because of his mental illness, he could not be prompt and that resulted in his nonappearance before the court. 6. The Family Court did not accept the said contention, primarily for the reason that there was no evidence to substantiate that contention. Further, the Family Court observed that from Exts.A3 and A4 produced in O.P.No.736 of 2017, it was revealed that the 1[st] appellant had **5** Mat.Appeal No.214 of 2022 been appearing before the Magistrate and pursuing his case in M.C.No.66 of 2015. The learned counsel appearing for the appellant would submit that often the 1[st] appellant had to undergo treatment and considering his unsteady state of mind, he could not appear before the court. The learned counsel also would contend that the dispute being between the husband and wife, a decision on merits will be appropriate and necessary, in the interest of justice. 7. 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 lifepurpose for the existence of the institution of Courts. 8. 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 **6** Mat.Appeal No.214 of 2022 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 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. **7** Mat.Appeal No.214 of 2022 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 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 **8** Mat.Appeal No.214 of 2022 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. In **Rafeek and another v. K. Kamarudeen and** ## **another [2021 (4) KHC 34]** 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 **9** Mat.Appeal No.214 of 2022 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. 10. The decree sought to be set aside was passed on 30.12.2019. In the instant case, the delay is stated to be 649 days. But, excluding the period after 15.3.2020 in the light of the decision of the Apex Court **IN RE:CONTAGION OF COVID 19 VIRUS IN PRISONS [2021 SCC Online SC 376]** the delay is below 3 months. 12. Where the delay is of a short period, going by the law laid down in the aforesaid decisions, a liberal approach is required. Of course, the appellants did not choose to produce any evidence in order to substantiate the correctness of the reason stated for the delay. However, considering the nature **10** Mat.Appeal No.214 of 2022 of the dispute between the parties and the period of delay, we are of the view that a lenient approach is required in this case. Accordingly, we deem it appropriate that the delay is liable to be condoned and the decree dated 30.12.2019 set aside on payment of a cost of Rs.2,500/- (Rupees two thousand and five hundred only) to the respondent. Accordingly, the appeal is allowed. Order in I.A.Nos.1 and 2 of 2021 dated 15.03.2022 in O.P.No.736 of 2017 is set aside on payment of costs of Rs.2,500/-. Costs shall be paid to the respondent within two weeks from today. On such payment, the Family Court, Malappuram, shall restore O.P.No.736 of 2017 on file and proceed to dispose of the same in accordance with law. The Family Court shall endeavour to dispose of the O.P within a period of three months from the date of such restoration. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** ## **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr **11** Mat.Appeal No.214 of 2022 ## **APPENDIX OF MAT.APPEAL 214/2022** **PETITIONER ANNEXURES** **Annexure A A CERTIFIED COPY OF THE ORDER DATED 30-12-2019 IN O.P.NO.736/2017 OF THE FAMILY COURT, MALAPPURAM**