N.P. Joy v. Kalyani Amma 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 WEDNESDAY, THE 24[TH] DAY OF MAY 2023 / 3RD JYAISHTA, 1945 F.A.O.NO. 34 OF 2009 AGAINST THE ORDERS DATED 31.07.2007 IN I.A.NOS.22 AND 23 OF 2005 IN O.S.NO.81 OF 1995 ON THE FILES OF THE SUB** ## **COURT, SULTHANBATHERY** ## **APPELLANT/PETITIONER/PLAINTIFF:** **N.P.JOY, S/O PAULOSE, NELLINILKUMTHADATHIL, CHEENAPULLUKUNNU,, THOMATTUCHAL VILLAGE, AMBALAVAYAL, KADALMADU P.O., MEPPADY, WAYANAD DISTRICT.** **BY ADVS. SRI.ABRAHAM P.GEORGE SRI.A.V.BIJU** **SMT.K.V.LEKSHMY** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** - **1 K.KALYANI AMMA,** - **D/O.DR.BALAGOPALAN, PERINTHALMANNA X-RAY CLINICAL, LABORATORY, PERINTHALMANNA. (DIED)*** - **2 K.LAKSHMI AMMA,** **D/O.K.BALAGOPALAN, PERINTHALMANNA X-RAY CLINICAL, LABORATORY, PERINTHALMANNA.** - **3 DR.K.BALAGOPALAN PERINTHALMANNA X-RAY CLINICAL LABORATORY, PERINTHALMANNA.** - **4* SOPHIAMMA BALAGOPALAN, W/O DR.BALAGOPALAN, PERINTHALMANNA X-RAY CLINICAL LABORATORY, PERINTHALMANNA.** 2 F.A.O.No.34 of 2009 **5* ADITHYAN BALAGOPALAN, D/O DR.BALAGOPALAN, PERINTHALMANNA X-RAY CLINICAL LABORATORY, PERINTHALMANNA.** ***THE 1ST RESPONDENT IS DEAD AND RESPONDENTS 2 AND 3 ARE RECORDED AS LEGAL REPRESENTATIVES OF R1 VIDE ORDER DATED 04.03.2013 IN F.A.O.NO.34 OF 2009.** ****THE LEGAL REPRESENTATIVES OF DECEASED 3RD RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 4 AND 5 AS PER ORDER DATED 24.05.2023 IN I.A.NO.1333 OF 2016.** **BY ADVS.** **SRI.R.RANJITH MANJERI SRI.P.VIJAYA BHANU SRI.P.VENUGOPAL 108692** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 24.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 F.A.O.No.34 of 2009 ## **JUDGMENT** ## P.G. Ajithkumar, J. This appeal filed under Section 104 and Order XLIII, Rule 1 of the Code of Civil Procedure, 1908 is one challenging the orders dated 31.07.2007 in I.A.N.22 of 2005 and I.A.No.23 of 2005 in O.S.No.81 of 1995 on the files of the Sub Court, Sulthanbathery. The said applications were dismissed. 2. Notice was directed to be served on the respondents. It was then reported that the 1[st] respondent was no more. On the application of the appellant, respondent Nos.2 and 3 were recorded as the legal representatives of the deceased 1[st] respondent. Notice on the 2[nd] respondent was served by paper publication. The 3[rd] respondent expired in the meantime. Additional respondents 4 and 5, who are the legal representatives of the deceased 3[rd] respondent were impleaded as per order dated 24.05.2023 in I.A.No.1333 of 2016. 3. Heard the learned counsel appearing for the appellant and also the learned counsel appearing for respondents 4 and 5. 4 F.A.O.No.34 of 2009 4. The appellant filed the suit seeking a decree for specific performance of an agreement for sale. When the balance court fees was due to be paid, the appellant did not take timely steps for the payment and that resulted in rejection of the plaint. He has filed I.A.No.201 of 1996 for restoration of the suit on file. The Sub Court allowed that application and the appellant was directed to pay the balance court fees. He filed an application as I.A.No.1170 of 1996 for enlargement of time, which also was allowed. Despite such enlargement of time, the appellant failed to make payment of the balance court fees and eventually I.A.No.1170 of 1996 was dismissed and the suit thereby stood dismissed. 5. It was thereafter the appellant filed I.A.No.23 of 2005 seeking to restore the suit on file invoking the provisions of Order IX, Rule 9 of the Code. There was a delay of 7 years, 5 months and 6 days in filing the said application. Therefore, he filed I.A.No.22 of 2005 for condonation of that delay under Section 5 of the Limitation Act, 1963. In that application, he also sought enlargement of time for making payment of the balance 5 F.A.O.No.34 of 2009 court fees. The 3[rd] respondent filed a counter opposing the said application. The Sub Court after recording evidence of PWs.1 and 2 and receiving Ext.A1 in evidence considered the applications in detail. As per the impugned order dated 31.07.2007, the Sub Court dismissed both interlocutory applications. The Sub Court took the view that the evidence of PWs.1 and 2 and Ext.A1 were insufficient to prove sufficient cause that prevented the appellant from remitting the balance court fees in time. It was held by the Sub Court that even if the entire evidence is believed, it would only show inability of the appellant to appear before the court for a short period. Thus it was held that there is no sufficient reason to condone the delay in making payment of the balance court fees in time. 6. The learned counsel appearing for the appellant would submit that from the oral testimony of PW1, the appellant and Ext.A1 the certificate issued in regard to his treatment, it is evident that the appellant was not able to travel and that really had disabled him from making payment of the balance court fees in time. Therefore, the learned 6 ## F.A.O.No.34 of 2009 counsel would urge to give one more opportunity to the appellant to pay the balance court fees. It is pointed out that in consequence of the agreement for sale, the appellant was put in possession of the property and therefore it is a case where a plea for specific performance was genuinely put forward and therefore in the interest of justice, the suit is liable to be restored on file. 7. The learned counsel appearing for respondents 4 and 5, on the other hand, would submit that despite giving repeated opportunities, the appellant did not remit the court fees and hence there is absolutely no justification in interfering with the impugned order. 8. 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. 7 F.A.O.No.34 of 2009 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 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 8 F.A.O.No.34 of 2009 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 first one warrants strict approach whereas the second calls for a liberal delineation. 21.9 The conduct, behaviour and attitude of a party 9 F.A.O.No.34 of 2009 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] ## 10. 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 10 F.A.O.No.34 of 2009 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. 11. As pointed out above, when the balance court fees was due to be paid, the appellant made default resulting in rejection of the plaint. That default was condoned and the appellant was given another opportunity to make payment. Even thereafter the attitude of the appellant was the same that, despite obtaining enlargement of time, he failed to make payment of the balance court fees. When the plaint was rejected and the suit was resultantly dismissed, the appellant kept mum for a period of more than seven years. After such a 11 F.A.O.No.34 of 2009 long lapse of time only he came forward with I.A.Nos.22 of 2005 and 23 of 2005. His contention is that due to ailment and treatment he was unable to come to the court and remit the balance court fees. 12. Certainly, if there was genuine reason, even such a long delay is liable to be condoned. From the evidence of PW2 it cannot be said that all throughout the said period, which is more than 7 years, the appellant was in a position not to travel and come to the court. Although Ext.A1 says that the appellant was under treatment from 12.06.1997 to 06.12.2004, it does not state that during the said period he was not able to move about. It is certified that there was difficulty for him to walk, but he was not an inpatient during whole of the said period. If he could go to PW2 to take the treatment there could be no difficulty for him to arrange payment of the balance court fees. In such circumstances, the claim of the appellant that he was totally unable to travel and approach his lawyer to make arrangements for paying the balance court fees cannot be said to be correct. In the nature 12 F.A.O.No.34 of 2009 of the evidence, only finding that could be possible is that there was no sufficient reason to condone such a long delay. The finding of the Sub Court in that regard is not liable to be interfered with, in the light of the law laid down in the aforesaid decisions. Since the appellant failed to make out that there was sufficient reason for the delay, merits of the case cannot have any bearing in deciding the question of condonation of delay and plea for restoration of the suit on file. In such circumstances, we are of the view that the impugned order does not require interference. Hence, the appeal is dismissed. ## **Sd/-** **ANIL K. NARENDRAN, JUDGE Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr