N.M. Haneefa v. N. Sainabha and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 6[TH] DAY OF JULY 2023 / 15TH ASHADHA, 1945** **F.A.O.NO. 50 OF 2014** **AGAINST THE COMMON ORDER DATED 13.11.2013 IN I.A.NOS.508 AND 509 OF 2012 IN O.S.NO.32 OF 2001 OF THE SUB COURT, SULTHAN BATHERY** ## **APPELLANT/PETITIONER:** ## **N.M.HANEEFA** **S/O. SAINUDHEEN VYDIAR, NADUKKANICHIRA VEEDU, KUNNAMANGALAMKUNNU, KOTTAPPADI, AMSOM DESOM, VYTHIRI TALUK.** **BY ADVS. SRI.C.A.CHACKO SMT.C.M.CHARISMA** ## **RESPONDENTS/RESPONDENTS:** - **1 N.SAINABHA** **W/O.T.M. IBRAHIM, MADAMTHODY VEEDU, CHUNGAM, SULTHAN BATHERY AMSOM DESOM, SULTHAN BATHERY TALUK - 673 592.** - **2 N. FATHIMMA** **W/O. ABDUL KAREEM, MEMANATHU VEEDU, KARANI, VARADOOR P.O, KANIYAMBETTA AMSOM DESOM, SULTHAN BATHERY TALUK - 673 121.** - **3 V. AYSHA** **W/O. SAINUDHEEN VYDIAR, SWASTHAM, NADUKKANCHIRA VEEDU, KUNNAMANGALAMKUNNU, KOTTAPADI AMSOM DESOM, VYTHIRI TALUK - 670 645.** 2 F.A.O.No.50 of 2014 - **4 N. KHADEEJA** - **D/O. SAINUDHEEN VYDIAR, SWASTHAM, NADUKKANCHIRA VEEDU, KUNNAMANGALAMKUNNU, KOTTAPADI AMSOM DESOM, VYTHIRI TALUK - 670 645.** - **5 V. ABOOBACKER @ SIDIQUE (DIED)** - **6 N. SAIDALAVI** - **S/O. SAINUDEEN VYDIAR, NADUKKANCHIRA VEEDU, KUNNAMANGALAMKUNNU, KOTTAPADI AMSOM DESOM, VYTHIRI TALUK - 670 645.** - **7 MYMOONA** - **W/O. LATE V. ABOOBACKER, NADUKKANCHIRA VEEDU, CHEMMNIYODE, MELATTUR AMSOM DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT-679 326.** - **8 FAROOQ N.C** - **S/O. LATE V. ABOOBACKER, NADUKKANCHIRA VEEDU, CHEMMNIYODE, MELATTUR AMSOM DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT-679 326.** - **9 SHAKEELA N.C.** - **D/O. LATE V. ABOOBACKER, NADUKKANCHIRA VEEDU, CHEMMNIYODE, MELATTUR AMSOM DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT-679 326.** - **10 LABBEB N.C** - **S/O. LATE V. ABOOBACKER, NADUKKANCHIRA VEEDU, CHEMMNIYODE, MELATTUR AMSOM DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT-679 326.** - **11 SELIN (MINOR), AGED 14 YEARS, S/O LATE V.ABOOBACKER, NADUKKANCHIRA VEEDU, CHEMMNIYODE, MELATTUR AMSOM DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, REPRESENTED BY MOTHER MYMOONA, W/O LATE V. ABOOBACKER, NADUKKANCHIRA VEEDU, CHEMMNIYODE, MELATTUR AMSOM DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT-679 326.** 3 F.A.O.No.50 of 2014 **BY ADVS. R1 R2 BY SRI.GEORGE VARGHESE KIZHAKKAMBALAM R1 R2 BY SRI.V.RAJENDRAN PERUMBAVOOR** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 06.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 4 F.A.O.No.50 of 2014 ## **JUDGMENT** ## P.G. Ajithkumar, J. This is an appeal filed under Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908. The 4[th] defendant in O.S.No.32 of 2001 on the files of the Sub Court, Sulthan Bathery is the appellant. He challenges in this appeal the order of the Sub Court dated 13.11.2013 in I.A.Nos.508 and 509 of 2012. 2. On 17.02.2014, this appeal was admitted and notice was directed to be served on the respondents. Notice is not yet served on respondent No.8. Notice sent to him was returned with an endorsement “out of India”. He is one of the legal representatives of Sri.V.Aboobacker, who was the 3[rd] defendant in the suit. The legal representatives of Sri.V.Aboobacker are respondent Nos.7 to 11. 3. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the contesting respondents. 4. The suit was filed by respondent Nos.1 and 2 for a 5 F.A.O.No.50 of 2014 decree of partition. They claimed 2/10[th] share and pleaded that defendants 1 to 5 were entitled to get the remaining shares. The suit was decreed exparte the appellant on 28.03.2011. In order to set aside the said decree and to condone the delay of 333 days in filing that petition, the appellant has filed I.A.Nos.508 and 509 of 2012. 5. Respondent Nos.1 and 2 have filed an objection controverting the contentions of the appellant. The appellant had tendered oral evidence as PW1 and produced Ext.A1 medical certificate dated 25.03.2012. After considering the said evidence, the court below held that there was no sufficient cause for condonation of the delay and also for his non-appearance on 28.03.2011 or 04.03.2011 on which date the case was listed for trial. Accordingly, both those applications were dismissed. 6. The learned counsel appearing for the appellant would submit that due to the physical inability, the appellant could not appear before the court on 04.03.2011 and on the subsequent dates to which the suit was adjourned. The oral 6 F.A.O.No.50 of 2014 evidence of PW1 coupled with Ext.A1 satisfactorily proved inability of the appellant, but the court below did not accept the same. Such a view is incorrect and against the evidence on record. The Doctor, who issued Ext.A1, was not examined only for the reason that he was not available. Thus, the learned counsel appearing for the appellant would urge that the order dated 13.11.2013 requires interference and to set it aside. 7. The learned counsel appearing for respondent Nos.1 and 2, on the other hand, would submit that on an earlier occasion also the appellant was set exparte and at that time he has filed I.A.No.7 of 2012 to set aside the said decree. That was allowed on payment of a cost of RS.1,500/-. But, he failed to pay the cost. Later, respondent Nos.1 and 2 filed an application for passing a final decree. Notice on the said application was received by the appellant and then he filed I.A.Nos.364 of 2004 and 365 of 2005 seeking to restore I.A.No.7 of 2012 and to condone the delay of 229 days in filing the first application. It was in the said circumstances, the suit was again tried by the court below. 7 F.A.O.No.50 of 2014 8. The suit was scheduled for trial on 04.03.2011. On that date, the appellant did not appear before the court. His counsel reported no instruction. Therefore, the appellant was set exparte and the court proceeded with the trial of the suit. Eventually on 28.03.2011, the decree in question was passed. 9. The reasons for his absence on 28.03.2011 and the delay of 333 days in filing I.A.No.508 of 2011, which is to set aside the exparte decree is that the appellant was undergoing treatment for rheumatism and he was not able to appear before the court. Ext.A1 is placed strong reliance on, but it shows that from 25.03.2011 onwards only he was under treatment. From the oral testimony of PW1 or Ext.A1, it cannot be found that the appellant was not in a position to move about. The court below after considering the said evidence, took the view that the appellant put forward such a case before the court, without _bona fides_ . The fact that the appellant on earlier occasions also did not appear before the court stating flimsy reasons, resulting in the pendency of the suit of the year 2001 till 2011, stands testimony to the lethargic and delaying attitude of the appellant. 8 F.A.O.No.50 of 2014 ## 10. 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. 11. 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 9 ## F.A.O.No.50 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 10 F.A.O.No.50 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] 11 F.A.O.No.50 of 2014 ## 12. 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. 13. The delay is of 333 days. Considering the history of the case and the attitude of the appellant, it can only be said that the period of delay is inordinate. Now, a final decree is passed in the matter on 09.12.2016. The learned counsel appearing for respondent Nos.1 and 2 would submit that on 12 F.A.O.No.50 of 2014 the basis of the final decree, subsequent sales were also taken place. Considering all such matters, we are of the view that setting aside the decree dated 28.03.2011 definitely will cause prejudice to the respondents. In such circumstances, we find no reason to interfere with the order dated 13.11.2013 of the court below dismissing I.A.Nos.508 and 509 of 2012 in O.S.No.32 of 2001. The appeal, therefore, fails and hence, the appeal is dismissed. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr