Nithya v. Sasikumar and others (F.A.O. Nos. 215 of 2008 & 236 of 2014)

# **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 6[TH] DAY OF JUNE 2023 / 16TH JYAISHTA, 1945** **F.A.O.NO. 215 OF 2008** **AGAINST THE ORDER DATED 03.07.2008 IN I.A.NO.2313 OF 2005 IN O.S.NO.173 OF 1997 OF THE I ADDITIONAL SUB COURT,** ## **THIRUVANANTHAPURAM** ## **APPELLANT/PETITIONER:** ## **NITHYA** **W/O VINOD, FLAT NO.4, PENTA QUEEN FLAT, PADIVATTOM, NEAR TATA CONSTULTANCY, COCHIN.** **BY ADV SRI.PIRAPPANCODE V.S.SUDHEER** ## **RESPONDENTS/COUNTER PETITIONERS:** - **1 SASIKUMAR, S/O APPUKUTTAN NAIR, RESIDING AT T.C.36/1002, SUBASH NAGAR,, PERUMTHANNI MURI, PETTAH VILLAGE, THIRUVANANTHAPURAM.** - **2 VASANTHASENAN, S/O.NARAYANA PILLAI (DIED) T.C.50/1772, MOHANA VILLA, KALADY MURI, MANACAUD VILLAGE.** - **3 MOHANA, W/O.VASANTHASENAN, T.C.50/1772 MOHANA VILLA, KALADY MURI, MANACAUD VILLAGE.** - **4 NITHISH, S/O.VASANTHASENAN, T.C.50/1772 MOHANA VILLA, KALADY MURI, MANACAUD VILLAGE.** - **5 NISHA, D/O.VASANTHASENAN, T.C.50/1772 MOHANA VILLA, KALADY MURI, MANACAUD VILLAGE.** 2 F.A.O.Nos.215 of 2008 & 236 of 2014 ## **BY ADVS.** **R1 BY SRI.V.SURESH R1 BY SRI.G.SUDHEER R4 & R5 BY SRI.B.SATHIQ** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 06.06.2023, ALONG WITH FAO.236/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 F.A.O.Nos.215 of 2008 & 236 of 2014 ## **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 6[TH] DAY OF JUNE 2023 / 16TH JYAISHTA, 1945 F.A.O.NO. 236 OF 2014** **AAGAINST THE ORDER DATED 03.07.2008 IN I.A.NO.2314 OF 2005 IN O.S.NO.173 OF 1997 OF THE I ADDITIONAL SUB COURT,** ## **THIRUVANANTHAPURAM** ## **APPELLANT/PETITIONER/1ST DEFENDANT:** **NITHYA VINOD, W/O VINOD, FLAT NO.4, PENTA QUEEN FLAT, PADIVATTOM, NEAR TATA CONSTULTANCY, COCHIN.** **BY ADVS. SRI.PIRAPPANCODE V.S.SUDHEER SRI.JELSON J.EDAMPADAM** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS & 2ND DEFENDANT:** - **1 SASIKUMAR S/O APPUKUTTAN NAIR, RESIDING AT T.C.36/1002, SUBASH NAGAR,, PERUMTHANNI MURI, PETTAH VILLAGE, THIRUVANANTHAPURAM.** - **2 VASANTHASENAN S/O NARAYANA PILLAI (DIED),T.C 50/1772,MOHANA VILLA, KALADY MURI, MANACAUD VILLAGE.** - **3 MOHANA, W/O VASANTHASENAN,T.C 50/1772, MOHANA VILLA, KALADY MURI, MANACAUD VILLAGE.** 4 F.A.O.Nos.215 of 2008 & 236 of 2014 - **4 NITHISH S/O VASANTHASENAN,T.C 50/1772,MOHANA VILLA,KALADY MURI,MANACAUD VILLAGE.** - **5 NISHA D/O VASANTHASENAN,T.C 50/1772,MOHANA VILLA,KALADY MURI,MANACAUD VILLAGE.** **BY ADVS.** - **R1 BY V.SURESH** - **R1 BY R.HARIKRISHNAN** **R1 BY G.SUDHEER** - **R3, R5 BY SAJU JOHN** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 06.06.2023, ALONG WITH FAO.215/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 5 F.A.O.Nos.215 of 2008 & 236 of 2014 ## **JUDGMENT** ## P.G.Ajithkumar, J. These are appeals filed under Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908. The 1[st] defendant in O.S. No.173 of 1997 of the I Additional Sub Court, Thiruvananthapuram is the appellant. She filed I.A.Nos. 2313 of 2005 and 2314 of 2005 in O.S.No.173 of 1997. Those applications were dismissed by the order dated 03.07.2008. The said orders are under challenge in these appeals. 2. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the 1[st] respondent who alone contests. 3. F.A.O No.215 of 2008 was filed seeking to set aside the common order dated 03.07.2008 in I.A.Nos.2313 and 2314 of 2005 in O.S.No.173 of 1997. That appeal was filed in time. F.A.O.No.236 of 2014 was filed seeking specifically to set aside the order in I.A.No.2314 of 2005 in O.S.No.173 of 1997. There is a delay of 2115 days in filing this appeal. The appellant has filed F.A.O No.236 of 2014 on the premises that 6 F.A.O.Nos.215 of 2008 & 236 of 2014 separate appeals challenging orders in I.A.No. 2313 of 2005 as well as I.A.No.2314 of 2005 ought to have been filed. Due to inadvertence, one appeal alone was filed and therefore the appellant filed F.A.O No.236 of 2014. The appellant citing those reasons filed C.M. Application No.1 of 2014 (I.A No. 633 of 2014) for condonation of delay of 2115 days in filing F.A.O.No.236 of 2015. The 1[st] respondent has filed a counter affidavit in C.M.Application No.1 of 2014. The 1[st] respondent maintains that one appeal was enough to challenge the common order in I.A.Nos.2313 and 2314 of 2005 in O.S.No.173 of 1997 and hence F.A.O.No.236 of 2014 itself is unnecessary. 4. I.A.Nos.2313 of 2005 was filed for condonation of delay of 3 years and 75 days in filing I.A. No.2314 of 2005. The court below declined the plea for condonation of the delay and consequently, I.A.No.2314 of 2005 was also dismissed. The order dismissing I.A.No.2314 of 2005 which was filed under the provisions of Order IX rule 13 of the Code being a dependent order, a composite appeal is enough to challenge 7 F.A.O.Nos.215 of 2008 & 236 of 2014 orders in I.A.Nos.2313 and 2314 of 2005. In that view of the matter, even without F.A.O.No.236 of 2014 correctness and legality of the common order in both those interlocutory applications can be decided. However, having filed F.A.O.No.236 of 2014, it is only appropriate to condone the delay, so that both appeals can be considered together. Therefore, C.M.Application No.1 of 2014 is allowed. 5. The 1[st] respondent filed O.S.No.173 of 1997 for a decree of specific performance of a contract for sale. The suit was decreed on 04.03.2002. The appellant was the 1[st] defendant. Her father was the 2[nd] defendant. The agreement for sale in question was allegedly executed by the 2[nd] defendant on the basis of a registered power of attorney executed by the appellant. The 2[nd] defendant is now no more and his other legal representatives are respondent Nos.3 to 5. As per the agreement, property of the appellant was agreed to be sold. It is seen from the records that the appellant and also her father, the 2[nd] defendant, entered appearance in O.S. No.173 of 1997 and a written statement was filed by the 2[nd] 8 F.A.O.Nos.215 of 2008 & 236 of 2014 defendant. Eventually, the defendants remained ex parte and the suit was decreed ex parte on 04.03.2002. 6. From the averments of the appellant itself it is evident that she got notice in I.A.No.1040 of 2002 which was filed by the 1[st] respondent under Section 28(3) of Specific Relief Act, 1963 for getting the conveyance deed executed in terms of the decree for specific performance. It was much thereafter, the appellant had filed I.A.Nos.2313 and 2314 of 2005. 7. The reason stated for delay for 3 years and 75 days is that the appellant did not get summons in the suit and his father on the basis of a forged power of attorney had executed the agreement for sale and also contested the suit. She contended that she had been residing along with her husband at different places on account of change of place of his employment. She therefore did not get the summons and that resulted in her failure to appear in O.S.No.173 of 1997 in time. The said contention is strongly refuted by the 1[st] respondent. 9 F.A.O.Nos.215 of 2008 & 236 of 2014 8. The learned counsel appearing for the 1[st] respondent would point out that the appellant received summons in the suit, entered appearance along with his father, the 2[nd] defendant and filed a written statement. Further, she received notice in I.A.No.1040 of 2002 which was filed under Section 28(3) of the Specific Relief Act. The learned counsel appearing for the 1[st] respondent further submitted that the appellant filed I.A.No.2316 of 2003 for setting aside the ex parte decree which was dismissed for default and therefore a second application for the purpose is not maintainable. 9. The assertion of the 1st respondent that I.A.No.2316 of 2003 was filed by the appellant for setting aside the decree and it was dismissed for default is not disputed by the appellant. By virtue of the provisions of Section 141 of the Code the procedure provided in regard to the suits shall be followed, as far as it can be made applicable, to other proceedings. It is explained that the proceedings includes proceedings under Order IX of the Code also. Therefore the bar created in Order 10 F.A.O.Nos.215 of 2008 & 236 of 2014 IX Rule 9 for filing of a fresh suit when a suit is dismissed for default is applicable to the 2[nd] application filed for setting aside an ex parte decree as well. Therefore there is a legal bar for filing I.A.No.2313 of 2005. 10. The appellant deposed as PW1 before the Court explaining the reasons for the delay. PW2 was also examined. Exts.A1 and A2 were produced to prove that her husband was employed elsewhere with whom she was residing and due to that reason she was not served with summons in the suit. But when her father along with her filed Vakalat in the suit and filed a written statement, and there was a registered power of attorney executed by her in favour of her father, the said contentions are not able to be accepted. That apart, she conceded that on knowing about filing of I.A.No.1040 of 2002, she filed the present petitions and as a matter of fact, she had earlier filed I.A.No.2316 of 2003 for the same purpose. So, it cannot be said that she did not know about the pendency of the suit ever before filing the present applications. Therefore the evidence brought on record would not prove sufficient cause for condonation of the delay. 11 F.A.O.Nos.215 of 2008 & 236 of 2014 ## 11. 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 lifepurpose for the existence of the institution of Courts. 12. 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 12 F.A.O.Nos.215 of 2008 & 236 of 2014 ## 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 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 13 F.A.O.Nos.215 of 2008 & 236 of 2014 ## 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 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.” [underlines supplied] 14 F.A.O.Nos.215 of 2008 & 236 of 2014 ## 13. In **Rafeek and another v. K. Kamarudeen and** **another [2021 (4) KHC 34]** a Division Bench of this Court 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 **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. 14. The delay in this case is 3 years and 75 days. When the delay is that inordinate, a strict approach is warranted. The reasons furnished by the appellant are insufficient to condone such a long delay. Therefore we are of the view that the view taken by the court below does not suffer from any infirmity. 15 F.A.O.Nos.215 of 2008 & 236 of 2014 15. The appellant filed O.S.No.358 of 2003 for setting aside the decree in O.S.No.173 of 1997 and such other reliefs. The cause of action for the said suit is essentially that such a decree was obtained by playing fraud upon the appellant as well as the Court. Such a suit is certainly based on an independent cause of action. Filing of such a suit itself infers that there existed a power of attorney purportedly executed by the appellant in favour of her father. She denies its due execution. As long as it is not set aside or avoided, the appellant may not be able to get absolved from the actions taken by her father on the strength of the power of attorney, on her behalf. Taking into account all such aspects, we are of the view that the impugned order does not require interference. Accordingly these appeals fail and the same are dismissed. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr