Musthafa P.S. v. Nazeera Beegum and Others

**C.R.** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE S.V.BHATTI** **&** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **FRIDAY, THE 09TH DAY OF OCTOBER 2020 / 17TH ASWINA, 1942** **Mat.Appeal.No.915 OF 2019** **AGAINST THE ORDER DATED 24-08-2019 IN I.A.NO.1120/2019 & I.A.NO.1121/2019 IN OP 1104/2011 OF FAMILY COURT, PALAKKAD** ## **APPELLANT/ PETITIONER :** **MUSTHAFA P.S., AGED 48 YEARS, S/O SULAIMAN, PUDUKKULAM VEEDU, TIPPU NAGAR, NELLIPPUZHA, THENKARA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT.** **BY ADVS. SRI.P.JAYARAM SRI.SARATH CHANDRAN K.B.** ## **RESPONDENTS :** **1 NAZEERA BEEGUM, AGED 39 YEARS, W/O P.S MUSTHAFA, KARUMANCHALA VEEDU, PUDUNAGARAM P.O., CHITTUR TALUK, PALAKKAD DISTRICT - 678 503. 2 TIPPU JATHEER, AGED 18 YEARS, S/O P.S MUSTHAFA, KARUMANCHALA VEEDU, PUDUNAGARAM P.O.CHITTUR TALUK, PALAKKAD DISTRICT-678 503.** **3 YAZIM MUNAZEER (MINOR), AGED 17 YEARS, S/O P.S MUSTHAFA, KARUMANCHALA VEEDU, PUDUNAGARAM P.O.CHITTUR TALUK, PALAKKAD DISTRICT-678 503. REPRESENTED BY MOTHER AND GUARDIAN 1ST RESPONDENT** **R1-R3 BY ADV. SRI.V.K.SATHYANATHAN** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 09.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mat.Appeal.No.915 OF 2019** 2 ## **C.R.** ## **JUDGMENT** Dated this the 9th day of October 2020 ## Bechu Kurian Thomas, J. The Family Court refused to condone the delay in filing the petition to set aside an ex parte decree and consequently refused to set aside the ex parte decree. Aggrieved by the said refusal this appeal has been preferred. Appellant is the husband in a marital relationship while respondents are the wife and children. In this judgment, the parties are referred to as husband and wife. 2. O.P.No.1104/2011 on the files of the Family Court, Palakkad, was filed by the wife and children seeking return of 32 sovereigns of gold ornaments. Husband was set ex parte and an ex parte decree was passed on 20.02.2014. After 1885 days' of the ex parte decree (on 21.05.2019), husband filed a petition as IA.No.1121/2019 to set aside the ex parte decree and IA.No.1120/2019 to condone the delay in filing the petition to set aside the ex parte decree. In the affidavit, supporting the applications, the reason stated was that the husband was under treatment for mental illness and that the delay of 1885 days was **Mat.Appeal.No.915 OF 2019** 3 caused on account of that. The wife filed objections contending that the case projected by the husband was false and pointed out four circumstances controverting the alleged reason of mental illness. It was stated that during 2014, the husband was an accused in a criminal case and he was appearing before the Sessions Court regularly, that he is conducting an Auto Consultancy business by himself before and after the decree and also that, after throwing out the wife, he has married another lady and has a child through her. It was also pointed out that in the original proceedings, the husband had attempted to get himself represented by his mother, as guardian and filed IA.No.2320/2012 for that purpose. In the said application, the Family Court personally examined the husband and also got him examined by a medical board, who, after assessing him, reported that he was not suffering from any mental illness. According to the wife, the Family Court rejected IA.No.2320/2012 and granted him time to file objection and he was later set ex parte, after several adjournments due to his failure to file even the objection. 3. The Family Court by the impugned order, dismissed the applications finding that there was nothing on record to prove that the petitioner remained as a person incapable of protecting his interests or that the alleged mental illness rendered him incapable of protecting his interests or forming his defense. **Mat.Appeal.No.915 OF 2019** 4 4. We have heard Adv.P.Jayaram, the learned counsel for the petitioner as well as Adv.V.K.Sathyanathan, the learned counsel for the respondents. 5. The delay caused in the instant case is 1885 days for filing the petition to set aside the ex parte decree. Delay totals to 5 years and 2 months. It is true that the word 'sufficient cause' appearing in Section 5 of the Limitation Act ought to be interpreted liberally. How liberally should such an interpretation be, depends upon the pleadings, evidence and the facts of the case. Adoption of a liberal approach to condone the delay ought not be stretched to the extent of making the provisions of Section 5 of the Limitation Act, 1963, a dead letter or the provisions for ensuring time bound disposal of cases, wholly redundant. Even if the length of delay is long, it can be condoned, provided sufficient explanation is given. What ought to be the primary concern to the court is not the length of delay but the sufficiency of explanation. It is in this approach that the need for explanation for each day's delay has been laid down as a principle by the Courts of law. It is needless to mention that a pedantic and rigid approach to explain every single day's delay is not normally adopted by courts, provided, a reasonable and broad explanation of the delay involved is given. However, a liberal interpretation of the words “sufficient cause” has led to a situation of imprudent drafting, **Mat.Appeal.No.915 OF 2019** 5 containing canards and nebulous stories. Explanations are provided with the assumption that court will not delve deeper into the reasons and instead will be dealt with, in a routine manner. However, of late, the Supreme Court has cautioned the courts against the increasing tendency to perceive delay as a non-serious matter and observed that dealing with delays in a routine manner makes the consideration as one based on individual philosophy and subjective, which is not proper. 6. In this context reference to **Damodaran Pillai & Others v. South Indian Bank Ltd. [(2005) 7 SCC 300]** is relevant. In the said decision, it was held that decision that the principles underlying the provisions prescribing limitation are based on public policy aiming at justice, the principle of repose and peace are intended to induce claimants to be prompt in claiming relief. In **Lanka** **Venkateswarlu (dead) By LRs. v. State of Andra Pradesh [(2011) 4 SCC 363]** , it was held that the concepts such as “liberal approach”, “justice oriented approach”, “substantial justice” cannot be employed to jettison the substantial law of limitation and also that whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. **Mat.Appeal.No.915 OF 2019** 6 ## 7. In the decision in **Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and Others** **[(2013) 12 SCC 649]** , principles that should govern consideration of application for condonation of delay was laid down. It was held as follows :- “21. From the aforesaid authorities the principles that can broadly be culled out are : (i). There should be a liberal, pragmatic, justice – oriented, 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. ii) The term “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. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel for litigant is to be taken note of. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. (vi) 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. (vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally **Mat.Appeal.No.915 OF 2019** 7 unfettered free play. (viii) 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. (ix) 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. (x). 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. (xi) 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. (xii) 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. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are :- a. An application for condonation of delay should be drafted with careful concern and not in a half hazard 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. **Mat.Appeal.No.915 OF 2019** 8 b. 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. c. 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 system should be made as that is the ultimate institutional motto. d. The increasing tendency to perceive delay as a nonserious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters”. 8. While applying the principles of law as stated above, to the case on hand, we find that, the affidavit supporting the petition to condone the delay is devoid of any material particulars. Other than a mere averment that before and after the decree, he was under treatment for mental illness and also that he was not aware about the case, there is nothing much pleaded to satisfy the conscience of the court that there was a sufficient cause. The dismissal of IA.No.2320/2012 was not even mentioned. The dates of alleged treatment, if any, or the places where he was treated, the details required for a satisfactory explanation were all not mentioned. The documents produced have not been proved through any witness and hence there is no evidentiary value for those documents. Even if it is assumed that evidentiary value can be attached to documents **Mat.Appeal.No.915 OF 2019** 9 produced by the husband, still they are all, certificates that were issued in 2019 which obviously were produced as an afterthought or to buttress the contentions now raised. The petitioner had not entered the witness box, he has not specified in his pleading the dates on which he was mentally ill, the dates of his specific treatments and other materials, so as to warrant an order in his favour. 9. On the other hand, the wife has stated that the husband had been appearing regularly in a Sessions Case during the relevant period and that he is conducting a business in Auto Consultancy during the relevant period and further he is residing with another lady after an arranged marriage and has even a child through her. While appreciating the entire gamut of facts, to arrive at an objective reasoning, materials are lacking to exercise the discretion in favour of the husband. No explanation worth its name, has been given to satisfy the court that there was sufficient cause for the long delay. 10. As rightly observed by the Family Court, the petitioner has not stated anywhere regarding the date of his recovery or about his incapacity to protect his interests on account of the said mental illness. It is seen that the Family Court had, before setting the petitioner ex parte, obtained a report from the Medical Board after physical verification. A perusal of the impugned order reveals that the Family Court has considered all the aspects in the proper perspective **Mat.Appeal.No.915 OF 2019** 10 including the documents that were produced for consideration. We fully endorse the reasoning given in the impugned order. There was no satisfactory explanation offered, for condoning the long delay of 1885 days. In the above circumstances, the delay of 1885 is not liable to be condoned and IA.No.1120/2019 was rightly dismissed by the Family Court. Consequently IA.No.1121/2019 was also dismissed in accordance with law. We find no reason to interfere with the impugned orders dated 24.08.2019 in IA.No.1120/2019 and IA.No.121/2019 in O.P.No.1104/2011. This matrimonial appeal is dismissed. Sd/- **S.V.BHATTI, JUDGE** Sd/- **BECHU KURIAN THOMAS, JUDGE** RKM