Naveen Kurian v. Suji George and George Mathulla

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 29[TH] DAY OF NOVEMBER 2022 / 8TH AGRAHAYANA, 1944** **MAT.APPEAL NO. 397 OF 2021** **AGAINST THE ORDER/JUDGMENT IN OP 585/2018 OF FAMILY COURT,** ## **MUVATTUPUZHA** ## **APPELLANT/S:** NAVEEN KURIAN AGED 47 YEARS S/O KURIAN, KAKKUZHIPARAMBIL HOUSE, CHENGOLAPADAM, NEAR NIRMALA COLLEGE, MULANTHURUTHY P.O.KANAYANNOOR TALUK, ERNAKULAM-682 314. BY ADV SREEJITH S.NAIR ## **RESPONDENT/S:** 1 SUJI GEORGE AGED 44 YEARS D/O GEORGE, MARTHULLA, KANJIRAKKATTHU HOUSE, PUTHENCRUZ P.O.KUNNATHUNADU TALUK, ERNAKULAM-682 308, (UNSOUND PERSON REPRESENTED BY 2ND RESPONDENT FATHER AND NATURAL GUARDIAN OF THE 1ST RESPONDENT ) 2 GEORGE MATHULLA, AGED 72 YEARS, S/O LATE MATHULLA, KANJIRAKKATTU HOUSE, PUTHENCRUZ P.O.KUNNATHUNADU TALUK, ERNAKULAM-682 308. BY ADVS. ALIAS M.CHERIAN GIGI PETER K.M.RAPHY ANJALY ELIAS BRISTO S PARIYARAM NEENU ANNA BABU THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 29.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mat Appl. No. 397 of 2021 2 ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellant filed O.P.No.585 of 2018 before the Family Court, Muvattupuzha, an Original Petition filed seeking a decree for permanent custody of the minor son, namely Kuriakkose Naveen. That Original Petition was dismissed for default on 26.06.2019. The appellant filed I.A.No.2 of 2020, invoking the provisions under order IX Rule 9 of the Code of Civil Procedure 1908, seeking an order to restore O.P.No.585 of 2018. That application was supported by I.A.No.1 of 2020, filed under Section 5 of the Limitation Act, seeking condonation of delay of 432 days. By the order dated 27.02.2021, the Family Court dismissed both the interlocutory applications. Challenging the said order dated 27.02.2021, the appellant is before this Court in this appeal, invoking the provisions under Section 19(1) of the Act. 2. On 27.07.2021, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondents. Though the parties were referred for Mat Appl. No. 397 of 2021 3 mediation, by the order dated 05.01.2022, before Ernakulam Mediation Centre in the premises of this Court, the matter could not be settled. 3. Heard the learned counsel for the appellant and also the learned counsel for the respondents. 4. The issue that arises for consideration in this appeal as to whether any interference is warranted on the order dated 27.02.2021 of the Family Court, Muvattupuzha, whereby, I.A.No.1 of 2020 and I.A.No.2 of 2020 in O.P.No.585 of 2018 stands dismissed for the reasons stated in the common order. 5. O.P.No.585 of 2018 was dismissed for default on 26.06.2019. The appellant filed I.A.Nos.1 and 2 of 2020 before the Family Court on 29.09.2020, with a delay of 432 days. From 15.03.2020 onwards, lockdown was declared due to spread of Covid-19 pandemic. In view of the direction issued by the Apex Court in **Re:Cognizance for Extension of Limitation [2021** **(5) KHC 508]** , the period from 15.03.2020 till 12.10.2021 can be excluded, while calculating the period of delay in filing I.A.No.2 of 2020. Then the extend of delay will be 230 days. Mat Appl. No. 397 of 2021 4 6. 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 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 Mat Appl. No. 397 of 2021 5 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. 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 Mat Appl. No. 397 of 2021 6 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 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.” 7. 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 Mat Appl. No. 397 of 2021 7 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 **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. 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. 8. Though the Family Court proceeded with the matter on the assumption that the extent of delay sought to be condoned by filing I.A.No.1 of 2020 is 432 days, the actual extent of delay, in view of the direction issued by the Apex Court in **Re:Cognizance for Extension of Limitation [2021 (5) KHC 508]** is only 230 days. The appellant produced Ext.A1 medical certificate dated 11.09.2020 issued by the Cardiologist of MOSC Mat Appl. No. 397 of 2021 8 Medical College, Kolenchery to show that he could not appear before the court on 26.06.2019, the date on which O.P.No.585 of 2018 was dismissed for default as he was suffering from cardiac issues. The said certificate would show that the appellant is a heart patient and he is on regular follow up and treatment. Though, the appellant has not chosen tho prove Ext.A1 medical certificate by examining the doctor who issued the said certificate or by examining himself, on the totality of the facts and circumstances of the case, we find that the delay of 230 days in filing this appeal can be condoned. In view of the law laid down in the decisions referred to supra, taking a lenient view, since the issue involved in O.P.No.585 of 2018 is permanent custody of a minor child and the paramount consideration of the court dealing with such matters is the welfare of the minor child and not the interest of the parents, who are at logger heads. In such circumstances, this appeal is allowed by setting aside the common order dated 27.02.2021 of the Family Court, Muvattupuzha, in I.A.Nos.1 and 2 of 2020, in O.P.No.585 of 2018. Those Interlocutory Applications will stand allowed, thereby, restoring O.P.No.585 of 2018 to file. Both parties are Mat Appl. No. 397 of 2021 9 directed to appear before the Family Court, Muvattupuzha on **20.12.2022.** Since the Original Petition is of the year 2018, the Family Court shall finally dispose of the same, as expeditiously as possible, at any rate, within a period of three months. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** Dxy