Musthafa M. mustha? v. Manappuram Asset Finance Limited (F.A.O No. 171 of 2015)

## **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 18[TH] DAY OF JULY 2022 / 27TH ASHADHA, 1944** **F.A.O NO. 171 OF 2015** **AGAINST THE COMMON ORDER DATED 17.06.2015 IN I.A.NOS.2243 AND 2244 OF 2014 IN O.S.NO.170 OF 2010 OF THE SUB COURT, OTTAPPALAM** ## **APPELLANTS/PETITIONERS/DEFENDANTS 1, 3 & 4:** - **1 M. MUSTHAFA, S/O MUHAMMED, AGED 47 YEARS** - **2 M.FIROSKHAN, S/O FATHIMA & MUHAMMED, AGED 33 YEARS** - **3 M.ABDULKHADER, S/0 MUHAMMED, AGED 45 YEARS** **ALL ARE RESIDING AT MULLASSERY HOUSE, POST KODUMUNDA, PATTAMBI TALUK, PALAKKAD DISTRICT.** **BY ADVS.** **SRI.R.SREEHARI SRI.M.V.SURESH KANNUR SRI.V.K.SREEJITH** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **MANAPPURAM ASSET FINANCE LIMITED, SHORNUR, REPRSENTED BY ITS MANAGING DIRECTOR, JYOTHI PRASANNAN, W/O PRASANNAN, PUZHAKADAVIL HOUSE, CIVIL LANE ROAD, THRISSUR – 680 003.** **BY ADV SRI.C.K.SREEJITH** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 18.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 F.A.O.No.171 of 2015 ## **JUDGMENT** ## Ajithkumar, J. Defendant Nos.1, 3 and 4 in O.S.No.170 of 2010 on the file of the Sub Court, Ottappalam, are the appellants. They filed I.A.Nos.2243 and 2244 of 2014 in the said suit, seeking to condone the delay of 576 days and to set aside the exparte decree in the suit dated 18.01.2013. Those applications were dismissed by the Sub Court as per a common order dated 17.06.2015. Challenging the said order, the appellants have preferred this appeal under Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908. 2. On 02.09.2015, notice was directed to be served on the respondent and the further proceedings in E.P.No.66 of 2014 in O.S.No.170 of 2010 was ordered to be stayed for a period of one month. On 01.10.2015, the interim order of stay was extended until further orders. 3. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent. 3 F.A.O.No.171 of 2015 4. The suit was filed by the respondent seeking realisation of an amount of Rs.8,88,750/- with interest and costs from the appellants, who were defendants 1, 3 and 4 and also the 2[nd] defendant. The 2[nd] defendant was the father of the appellants. It was the 2[nd] defendant, who was conducting the case by engaging a lawyer. He, unfortunately, died on 03.06.2012. Thereafter, the appellants did not have any information regarding the proceedings in the suit. Only when notice in the execution proceedings was received, the appellants came to know about the decree dated 18.01.2013. On enquiry, they knew that the counsel engaged by their father reported no instructions on 16.01.2013, and resultantly the suit was decreed on 18.01.2013. In fact, a written statement was filed in the suit raising serious contentions. In the circumstances, the appellants contended that for sufficient cause only they failed to appear before the court and that the delay of 576 days had occasioned due to reasons beyond their control. 4 F.A.O.No.171 of 2015 5. The respondent has filed a counter controverting the contentions of the appellants. It was contended that the appellants were fully aware of the proceedings and only after a Commissioner was appointed in the case for recording evidence, the counsel of the appellants reported no instructions resulting in decreeing the suit ex parte. Therefore, the reasons stated for the delay and nonappearance of the appellants are totally insufficient. 6. The 1[st] appellant Sri.Musthafa was examined as PW1. He deposed regarding the circumstances under which he and other appellants could not appear before the court. The fact that his father, the 2[nd] defendant, died on 13.06.2012 is not disputed. Naturally, when the father was there, he would have been looking into the matters connected with the suit. The version of PW1 in that regard cannot be disbelieved. After the death of the father, the appellants were said to have obtained no information regarding the proceedings in the suit. Although cross-examined in detail, nothing to suggest that any of the appellants did have information regarding the proceedings in the suit after the death 5 F.A.O.No.171 of 2015 of their father has been brought out from PW1. In the said circumstances, it is only appropriate to believe the facts stated by PW1. The reasons stated by the court below for discarding the evidence of PW1 in toto are therefore untenable. We are of the view that the cause stated by the appellants for the delay as well as non-appearance in court when the case was taken up for trial, is sufficient. 7. There is no rule to guide as to when can courts record satisfaction about sufficiency of the 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 with the sufficiency of the cause. 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. 6 F.A.O.No.171 of 2015 8. In **Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649]** the Apex Court while summarizing 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. 9. In **Esha Bhattacharjee** , after summarizing the principles applicable while dealing with an application for condonation of delay, the Apex Court added some more 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 7 ## F.A.O.No.171 of 2015 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 basis of individual philosophy which is basically subjective. 10. This Court in **Rafeek and another v. K. Kamarudeen and another [2021 (4) KHC 34]** held that the Law of Limitation is founded on public policy to ensure that the parties to litigation do not resort to dilatory tactics and seek legal remedy without delay and in an application filed under Section 5 of the Act, the court has to condone the delay if sufficient cause is shown. 11. Viewed in the light of the principles enunciated by the Apex Court and this Court in the aforesaid decisions, a lenient view in this matter is required. The delay was 576 days. But the reasons stated for the delay by the appellants are convincing. Therefore, we hold that the impugned order dated 17.06.2015 is liable to be set aside. The inconvenience caused to the respondent on account of the delay needs to be 8 F.A.O.No.171 of 2015 compensated. We are of the view that the appellants are liable to pay costs to the respondent. 12. Hence, this appeal is allowed. The orders of the Sub Court, Ottappalam dated 17.06.2015 in I.A.Nos.2243 and 2244 of 2014 in O.S.No.170 of 2010 are set aside. 13. I.A.Nos.2243 and 2244 of 2014 in O.S.No.170 of 2010 are allowed on the appellants' making a payment of a costs of Rs.5,000/- (Rupees five thousand only) to the respondent within a period of one month from today. On such payment, the Sub Court, Ottappalam will restore O.S.No.170 of 2010 on file. It is an old suit. The Sub Court, Ottappalam is therefore directed to dispose of the suit within a period of four months from the date of such restoration. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr