Najumuddin v. Al-Wazzani Electro Mechanical Contracting Sharjah UAE; Joy K.M.; Spark Electric Cont LLC; Mariyamma Francis; Susan Francis

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` WEDNESDAY, THE 7[TH] DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945 ``` ``` FAO NO. 34 OF 2023 ``` ``` AGAINST THE ORDER DATED 24.02.2023 IN I.A.NO.3/2022 IN R.P.NO.7/2022 IN OS 85/2016 OF HON’BLE SUBORDINATE JUDGE, PUNALUR ``` ## **`APPELLANT/PETITIONER/DEFENDANT NO.2:`** ``` NAJUMUDDHIN, AGED 52 YEARS, S/O MUHAMMED ISMAIL, PALLIVADAKKETHIL VEEDU, THAZHAMEL MURI, ANCHAL VILLAGE, KOLLAM DISTRICT, PIN - 691306 ``` ``` BY ADV A.SANIL KUMAR ``` ## **`RESPONDENTS/RESPONDENTS/PLAINTIFF, 1[ST] DEFENDANT & LRs OF 3[RD]`** ``` DEFENDANT: ``` ``` 1AL-WAZZANI, ELECTRO MECHANICAL CONTRACTING SHARJAH, UAE, REPRESENTED BY ITS MANAGING PARTNER, JOY K.M. KOLENCHERY VEEDU, MANIKYAMANGALAM KARA, MATTOOR VILLAGE, ALUVA TALUK, ERNAKULAM, PIN - 683511 2JOY K.M, KOLENCHERY VEEDU, MANIKYAMANGALAM KARA, MATTOOR VILLAGE, ALUVA TALUK, ERNAKULAM, PIN - 683511 3SPARK ELECTRIC CONT LLC REPRESENTED BY ITS MANAGING PARTNER, SHARJAH, UAE ``` ``` 4MARIYAMMA FRANCIS, D/O LATE PHILIPOSE, THARAYILVEEDU, PANDANAD NORTH P.O., KALLISSERY, ALAPPUZHA DISTRICT, PIN - 689124 ``` ``` 5SUSAN FRANCIS D/O LATE PHILIPOSE, THARAYILVEEDU, PANDANAD NORTH P.O., KALLISSERY, ALAPPUZHA DISTRICT, PIN - 689124 ``` ``` ADV K.A MANZOOR ALI FOR R2 ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 02.02.2024, THE COURT ON 07.02.2024 DELIVERED THE FOLLOWING: ``` 2 F.A.O.No.34 of 2023 ## **J U D G M E N T** ## G. Girish, J. The 2[nd] defendant in O.S.No.85 of 2016 of the Sub Court, Punalur has filed this appeal against the dismissal of the petition filed by him under order IX Rule 13 of the Code of Civil Procedure, consequential to dismissal of a delay condonation petition filed under Section 5 of the Limitation Act. 2. The above money suit filed by the plaintiff was decreed ex parte by the Sub Court, Punalur on 24.05.2018. According to the appellant/2[nd] defendant, he had engaged a lawyer to defend the said suit and filed written statement in the said case. However, he would contend that he could not communicate with his lawyer thereafter, since he was away at Delhi to look after his ailing sister. It is further contended that the appellant came to know about the ex parte decree passed in this case only when he received the notice in execution proceedings. 3. The learned Sub Judge, as per the order dated 24.02.2023 in the delay condonation petition numbered as I.A.No.3 of 2022, observed that the appellant failed to explain the delay of 1606 days in filing a petition to set aside the ex parte decree. Accordingly, the above petition was dismissed by the Sub Court, Punalur. As consequential to the above order in the delay 3 F.A.O.No.34 of 2023 condonation petition, I.A.No.04 of 2022 in Restoration Petition No.07 of 2022 filed under Order IX Rule 13 of the Code of Civil Procedure, was also dismissed. Aggrieved by the above orders of the learned Sub Judge, Punalur, the appellant is here before this Court with this appeal. 4. Notice of this appeal has been duly served on the respondent/plaintiff, who appeared through his counsel and opposed the reliefs sought for in this appeal. 5. Heard the learned counsel for the appellant and the learned counsel for the respondent. 6. As already stated above, the appellant has come forward with the contention that he had engaged a lawyer to defend the suit before the trial court and filed written statement, but was not able to keep in touch with his lawyer for a long time since he was away at Delhi to take care of his ailing sister. It is his further contention that he came to know about the ex parte decree only when he received notice in the execution proceedings. The court below has observed in the impugned order that the appellant has offered no explanation as to why he could not contact his lawyer through mobile phone and get updated about the stage of the case. The learned Sub Judge further noted in the impugned order that the appellant 4 F.A.O.No.34 of 2023 has not offered any satisfactory explanation for the huge delay of 1606 days in preferring an application to set aside the ex parte decree. The conduct of the appellant who had earlier filed similar petitions as I.A.No.01 of 2022 and I.A.No.02 of 2022 on 17.08.2022 and thereafter got the said applications dismissed as not pressed on 17.11.2022, is also referred in the impugned order with the observation that the reason for the withdrawal of the above applications is also not revealed by the appellant. The omission of the appellant to state about the relevant period when he went to Delhi, remained at Delhi and returned from Delhi, and also the difficulty, if any in communicating with his lawyer through phone, are mentioned in the impugned order as reasons to doubt the bona fides of the appellant. The observations made by the learned Sub Judge in the above regard are perfectly justifiable. 7. It is too hard to believe, in this era of advanced telecommunication and online technology including video conferencing and video calls, that the appellant was not able to contact his lawyer for a period of about five years and get the information about the stage of the case in which he has been sued for realisation of money to the tune of Rs.75 lakhs. It is also not possible to believe that the appellant might not have visited his native place throughout this whole period of about five years. Taking 5 F.A.O.No.34 of 2023 into account of the above circumstance, in the backdrop of the failure of the appellant to explain plausible reasons in his applications for the delay occasioned in filing petition to set aside the ex parte decree, the finding of the court below in the impugned order cannot be found to be faulty. 8. It is true that the general trend of judicial precedents in the matter of condonation of delay by invoking Section 5 of the Limitation Act, is that the courts shall take a liberal view, when the applicant is able to bring out the necessary materials to show that there was sufficient cause for the delay which occasioned in moving the application or appeal, as the case may be, before the court concerned. So also, it has been laid down that courts should avoid taking a pedantic attitude and sticking on to technicalities, while dealing with delay condonation petitions, restoration petitions and matters relating to setting aside ex parte decrees. But at the same time, the Apex Court as well as various High Courts have emphasized the need to identify genuine cases from those cases where such applications are filed without any bona fides, with the sole objective of procrastination of proceedings to vex and harass the opposite parties. It is well-settled that courts are not expected to allow applications of such nature for the mere asking of the same, if it is found that such applications are filed in a perfunctory manner, 6 ## F.A.O.No.34 of 2023 without stating genuine grounds for invoking the relevant provisions of law, which are enacted upon the principles of equity. ## 9. 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: 21.1 (i) 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 (ii) 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. 7 F.A.O.No.34 of 2023 21.3 (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. 21.4 (iv) 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 (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6 (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. 21.7 (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8 (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. 21.9 (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. 21.10 (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts 8 F.A.O.No.34 of 2023 should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11 (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. 21.12 (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. 21.13 (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.” 10. In **Esha Bhattacharjee** , 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 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 base of individual philosophy which is basically subjective. Para.22 of the judgment reads thus; “22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:— 22.1 (a) 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 9 F.A.O.No.34 of 2023 to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. 22.2 (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. 22.3 (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. 22.4 (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.” 11. In **Rafeek and another v. K. Kamarudeen and** **another [2021 (4) KHC 34 : (2021) 2 RCR (Rent) 223 : 2021** **AIR CC 2752]** 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 Court in **Collector, Land Acquisition, Anantnag & another v. Mst.Katiji & Others [(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)** 10 F.A.O.No.34 of 2023 **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. An application for condonation of delay should be drafted with careful concern and no court shall deal with such an application in a routine manner. 12. Applying the principles of law discussed aforesaid, to the facts of the case on hand, it is not possible to find fault with the verdict of the learned Sub Judge, who dismissed I.A No.3 of 2022 filed by the appellant for condonation of delay of 1606 days, and the consequential dismissal of I.A.No.04 of 2022 in Restoration Petition No.07 of 2022 filed for setting aside the ex parte decree. Thus, there is absolutely no scope for interference with the orders under challenge in this appeal. In the result, the appeal is hereby dismissed. **==> picture [44 x 14] intentionally omitted <==** (sd/-) ## **G. GIRISH, JUDGE** jsr