N. Shibu v. Chathambath Muraleedharan

**FAO.No.43 OF 2020** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS MONDAY, THE 16TH DAY OF MARCH 2020 / 26TH PHALGUNA, 1941** **FAO.No.43 OF 2020** **AGAINST THE ORDER IN I.A NO.139/2019 IN OS 123/2011 OF SUB COURT, TIRUR** ## **APPELLANT/PETITIONER/DEFENDANT:** **N.SHIBU AGED 43 YEARS S/O.M.R.NARAYANAN, VAISHNAVAM, AMBALAPPUZHA DESOM, AMBALAPPUZHA P.O., AMBALAPPUZHA TALUK, ALAPPUZHA-688 506.** **BY ADVS. SRI.DIPU.R SMT. DEVI KRIPA R. SRI.K.S.BAIJU SRI.S.SAMEER SMT.DHANYA BABU SMT.P.A.PRIYA SMT.ANSU SARA MATHEW** ## **RESPONDENT/RESPONDENT/PLAIINTIFF:** ## **CHATHAMBATH MURALEEDHARAN** **AGED 57 YEARS S/O.MEENAKSHI AMMA, EASWARAMANGALAM AMSOM, KOTTATHARA DESOM, PONNANI TALUK, MALAPPURAM679 576.** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 9.3.2020, THE COURT ON 16.03.2020,PASSED THE FOLLOWING:** **FAO.No.43 OF 2020** **2** ## **ORDER** ## **Dias,J.** The appellant is the defendant in O.S No.123/2011 on the file of the Court of the Subordinate Judge, Tirur. The respondent in this appeal was the plaintiff in the above suit. 2. The case of appellant in the memorandum of appeal, is as follows: The respondent had filed the suit seeking a decree for specific performance of an agreement of sale. The appellant had filed a written statement denying the allegations in the plaint. The suit was listed for trial on 8.12.2015. On the said date there was no representation for the appellant and he was set ex parte. The court below by its judgment and decree dated 11.12.2015, decreed the suit as prayed for. The **FAO.No.43 OF 2020** **3** appellant filed I.A No.139/2019 in the suit under Order IX Rule 13 of the Code of Civil procedure read with Section 5 of the Limitation Act to condone the delay of 1138 days in filing the application to set aside the ex parte decree and to set aside the decree passed on 11.12.2015. The court below by the impugned order dated 31.8.2019 dismissed the application on the ground that there was no sufficient reason to condone the delay and set aside the ex parte decree. 3. It is aggrieved by the said order dated 31.8.2019 passed by the court below in I.A No.139/2019, that this appeal is filed. 4. Heard the learned counsel for the appellant. 5. The learned counsel for the appellant argued that the court below has taken a pedantic and hyper technical stand in dismissing the application to condone the delay and to set aside **FAO.No.43 OF 2020** **4** the ex parte decree. The court below has failed to consider the authoritative precedents of the Hon'ble Supreme Court in a catena of decisions, wherein it has been laid down that a liberal view has to be taken while considering applications to set aside an ex parte decree. The court below has adopted a very narrow minded approach while passing the impugned order. Hence the appeal may be allowed and the impugned order may be set aside. 6. Per contra, the learned counsel for the respondent argued that the appellant was served with summons in the case. He appeared and filed a written statement refuting the allegations in the plaint. When the case was listed for trial, the appellant deliberately kept away from court, and consequently the ex parte decree was passed. There is no cause shown in the application, leave alone sufficient cause explaining the in-ordinate **FAO.No.43 OF 2020** **5** delay of 1138 days in filing the application. He prayed that the appeal may be dismissed. 7. We have gone through the application filed by the appellant and the counter statement filed by the respondent. The case of the appellant before the court below was that even though the counsel appearing for him before the court below had intimated him to by letter, the date of next hearing, the letter was not delivered to him. It is only when the execution petition was filed to execute the ex- parte decree, that he came to realise that the decree was passed. Immediately, he filed the above application seeking to condone the delay of 1138 days in filing the application to set aside the ex-parte decree. 8. The Supreme Court in Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and Others [(2013) 12 SCC 649] has observed that no presumption can be attached to **FAO.No.43 OF 2020** **6** deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of and that 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. 9. A three Judge Bench of the Hon'ble Supreme Court in a recent decision in University of Delhi v. Union of India & Others [2019 KHC 7261] has reiterated the legal proposition that condonation of delay should not be automatic since the accrued right or adverse consequence to the opposite party is also to be kept in perspective. In the said background, while considering the condonation of delay, the routine explanation would not be enough, but it should be the nature of indicating 'sufficient cause', to justify the delay which will depend on the back drop of each case and it will have to be weighed carefully by the court based on **FAO.No.43 OF 2020** **7** the fact situation. 10. The only reason pleaded by the appellant to condone the inordinate delay of 1138 days is that though the appellant's counsel had sent a letter informing him of the date the case was listed for trial, but he did not receive the letter. The court below has rightly observed in impugned order that in the present times, with the advancement of technology, there are various modes of communication. Thus, the explanation put-forth by the appellant, that his counsel sent him a letter, which was not received by him, can only be accepted with a pinch of salt. 11. In the totality of the facts and circumstances of the case, we are not satisfied with the explanation put-forth by the appellant that it was only because he did not receive the letter sent by his counsel that he did not appear before the court below. There is absolutely no reasonable **8** ## **FAO.No.43 OF 2020** explanation to condone the inordinate delay of 1138 days. Likewise, if the delay is condoned and the case is to be decided afresh, it would adversely affect the accrued rights of the respondent. We do not find any merit in the appeal to set aside the ex- parte decree. Consequentially, the appeal is dismissed. **Sd/-K.HARILAL, JUDGE** ma/10/02/2020 **Sd/-C.S.DIAS, JUDGE** /True copy/ P.S to Judge ## **FAO.No.43 OF 2020** **9**