Nivya V.M. v. Sivaprasad M.K.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 19[TH] DAY OF DECEMBER 2022 / 28TH AGRAHAYANA, 1944 MAT.APPEAL NO. 171 OF 2022** **AGAINST THE JUDGMENT DATED 07.01.2016 IN O.P.NO.200 OF 2014 ON THE FILE OF THE FAMILY COURT, KASARAGOD APPELLANT/PETITIONER:** **NIVYA V.M.,** **AGED 32 YEARS, D/O.CHANDRAMOHANAN, RESIDING AT DR.AMBEDKAR ROAD, NELLIKUNNU, KASARAGOD P.O., KASARAGOD DISTRICT.** **BY ADVS. T.MADHU C.R.SARADAMANI SHAHID AZEEZ RENJISH S. MENON** ## **RESPONDENT/RESPONDENT:** **SIVAPRASAD M.K.** **AGED 47 YEARS, SON OF K.V.SANTHA, RESIDING AT BEACH ROAD, NELLIKUNNU, KASARAGOD P.O., KASARAGOD DISTRICT - 671 121.** **BY ADV R.PADMAKUMARI** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 19.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Mat.Appeal No.171 of 2022 ## **ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ.** **----------------------------------------------------------Mat.Appeal No.171 of 2022** **----------------------------------------------------------Dated this the 19[th] day of December, 2022** ## **ORDER/JUDGMENT** ## P.G.Ajithkumar, J. ## C.M.Appl.No.1 of 2022 There is a delay of 2152 days in filing the appeal. The appellant has filed this petition under Section 5 of the Limitation Act, 1963, seeking to condone the said delay. 2. The appellant filed O.P.No.200 of 2014 seeking a decree of divorce. The original petition was dismissed as per the judgment dated 07.01.2016. The appellant would contend that after dismissal of the petition filed by the respondent for declaring the marriage null and void, she has filed O.P.No.200 of 2014. On account of the pressure mounted on her following dismissal of the earlier petition, and in consequent of shattering her dreams and aspirations, she fell in severe despair. She had to attend psychiatric counselling to overcome the depression. Although she tried to migrate to United States 3 Mat.Appeal No.171 of 2022 of America, that also failed on account of the dispute regarding to the marital relationship and resultant litigations. Due to those developments, she could not file the appeal in time. Hence, she seeks to condone the delay. 3. The respondent filed counter affidavit. He would contend that the reasons stated for the delay by the appellant are totally incorrect. In 2015, she joined for Ph.D. in Central University of Kerala at Periya in Kasaragod. She has been pursing that course and for internship in connection with her Ph.D. course she went to U.S.A. during 2018-19. The respondent filed O.P.No.172 of 2011 for restitution of conjugal rights, but the Family Court, Kasaragod dismissed that original petition. In the appeal filed by the respondent, Mat.Appeal No.819 of 2016, the appellant herein had entered appearance and filed Vakalath on 06.08.2016. There was no difficulty for the appellant to approach the counsel appearing in Mat.Appeal No.819 of 2016. Since she could appear in other cases and go to U.S.A., her contention that she was under severe despair and consequent depression cannot be believed. Since she went abroad suppressing the criminal 4 Mat.Appeal No.171 of 2022 cases pending against her and in connivance with policemen, a criminal case was registered against her in that regard in 2019, which also revealed that she filed the present petition without any bonafide. 4. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 5. The sole reason stated by the appellant for condonation of delay is that she was under severe despair on account of the marital discord and connected litigations. O.P.No.200 of 2014 was dismissed on 07.01.2016. Going by the averments in the affidavit of the appellant, she applied for a certified copy of the impugned judgment only on 29.11.2021. The respondents would allege that during the said period, she has been very much active and involved in many activities, including a trip to U.S.A. She allegedly had filed vakalath before this Court in Mat.Appeal No.819 of 2016 filed by the respondent during the period in question. It was in 2018-19 period she allegedly went to U.S.A. in pursuit of 5 Mat.Appeal No.171 of 2022 her Ph.D. course. It is seen that there were criminal cases between the parties, which are also relating to the disharmony in their matrimony. Another aspect pointed out by the respondent is that a criminal case was registered against the appellant since she travelled abroad suppressing the pendency of the criminal cases pending against her. From those contentions of the respondent, it cannot prima facie say that the appellant was not in a position to take steps to file the appeal during all these period, which spans about 6 years. When the contentions of the appellant regarding the reasons for the delay are thus refuted by the respondent, it is her obligation to place sufficient materials before the court to substantiate her contentions, but the appellant did not place on record any material. 6. 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, 6 Mat.Appeal No.171 of 2022 which subserves the ends of justice, that being the lifepurpose for the existence of the institution of Courts. 7. 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 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 7 Mat.Appeal No.171 of 2022 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 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 8 Mat.Appeal No.171 of 2022 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] ## 8. In **Rafeek and another v. K. Kamarudeen and** **another [2021 (4) KHC 34]** a Division Bench of this Court 9 Mat.Appeal No.171 of 2022 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. 9. Here, the delay is 2152 days, which indisputably is inordinate. Unless convincing materials are placed on record, such a long delay cannot be condoned. The appellant did not produce any material to show that there was sufficient justification for the delay. In the light of the law laid down by the Apex Court and this Court in the aforesaid decisions, we are of the view that the appellant failed to show sufficient 10 Mat.Appeal No.171 of 2022 cause for condoning the delay of 2152 days. Hence, this petition is dismissed. Mat.Appeal No.171 of 2022 Since the petition for condonation of delay is dismissed, this appeal is also dismissed. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr