Omana Thomas v. Thilakaraajan and Jayarajan

# **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 8[TH] DAY OF MARCH 2022 / 17TH PHALGUNA, 1943** **F.A.O.NO.75 OF 2021** **AGAINST THE ORDER DATED 01.10.2021 IN I.A.NOS.1 AND 2 OF 2020 IN O.S.NO.24 OF 2017 OF SUB COURT, PUNALUR. APPELLANT/PETITIONER/DEFENDANT:** **OMANA THOMAS, AGED 77 YEARS, D/O. ACHAMMA IDIKULA, PARAKAL PUTHEN VEEDU, VP 21/588, MANIKANTESWARAM P.O., PEROORKADA VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHPURAM DISTRICT-695013.** **BY ADVS. V.N.SANKARJEE V.N.MADHUSUDANAN R.UDAYA JYOTHI M.M.VINOD M.SUSEELA KEERTHI B. CHANDRAN VIJAYAN PILLAI P.K. C.PURUSHOTHAMAN NAIR NITHEESH.M SUNNY K.MANJALY** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:** **1 THILAKARAJAN, S/O. VIJAYAN, SREETHILAKAM, VAYYANAM P.O., KEEZHTHONI MURI, ITTIVA VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT-691533.** 2 ## F.A.O.No.75 of 2021 **2 JAYARAJAN, S/O. VIJAYAN, SUNIL BHAVAN, NARIKKAL P.O., VENCHEMBU MURI, KARAVALOOR VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT-691322.** **BY ADVS. SUBHASH CYRIAC SHEEBA JOSEPH ASHA JYOTHY S.SREEJITH** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 08.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 F.A.O.No.75 of 2021 ## **JUDGMENT** Ajithkumar, J. This appeal was filed under Order XLIII, Rules 1(d) and Rule 1A of the Code of Civil Procedure, 1908. The defendant in O.S.No.24 of 2017 on the file of the Sub Court, Punalur has filed the appeal. The suit was decreed exparte on 06.12.2019. The appellant filed I.A.No.1 of 2020 for setting aside the said decree invoking Order IX, Rule 13 of the Code along with I.A.No.2 of 2020 seeking to condone the delay of 303 days invoking Section 5 of the Limitation Act, 1963. Both applications were dismissed. Challenging the said orders, this appeal has been preferred. 2. The reason pleaded by the appellant for her nonappearance before the court below and delay for filing the application under Order IX, Rule 13 of the Code that she was suffering from post-accident trauma and resultant inability; even to walk, was refuted by the respondents by filing an objection. The respondents also contended that on 04.12.2019, the day on which the suit was posted for evidence by including in the special list, the appellant failed to 4 ## F.A.O.No.75 of 2021 attend the court and on the adjourned date, 06.12.2019 also, she did not appear in court. No medical certificate in support of the contention has been produced. Pointing out the said circumstances the applications were sought to be dismissed. 3. The Sub Court had recorded oral testimony of the appellant and received in evidence Ext.A1, which is a copy of a petition filed in O.S.No.26 of 2014 on 25.06.2021. The learned Sub Judge was not prepared to act upon the oral testimony of PW1, unsupported by any medical records and accordingly, dismiss the applications. 4. The appeal was admitted on 23.11.2021 and execution of the decree in O.S.No.24 of 2017 was stayed. The stay order initially granted for a period of one month has been extended from time to time. 5. Today, we heard the learned counsel appearing for the appellant and also the learned counsel appearing for the respondents. 6. The only point to be considered is whether there was sufficient cause for the non-appearance of the appellant before the court below and to condone the delay? 5 ## F.A.O.No.75 of 2021 7. The appellant produced four documents, one along with the appeal and three along with I.A.No.1 of 2022. I.A.No.1 of 2022 is filed under Order XLI, Rule 27 read with Section 151 of the Code. It was stated that earlier the appellant was not able to produce the said documents. He contended that although she was undergoing treatment under different Doctors, no certificate could be obtained for being produced before the court. Having heard the learned counsel appearing on either side, we received the said documents in evidence and marked them as Exts.A1 to A4. 8. From the oral testimony of PW1, and Exts.A1 to A4, it can be seen that the appellant had involved in a road traffic accident on 25.06.2013 in which, she sustained serious injuries. It has been certified that eventually she lost vision of her right eye, had to undergo plastic surgery and had been afflicted with diabetic complications. It is also certified that her ambulation has been restricted. Considering the said evidence, we are of the view that there has been serious physical inability to the appellant for free movement and to attend the court as and when required. When such difficulties 6 F.A.O.No.75 of 2021 and inconveniences were there, her non-attendance before the court when the suit was posted for evidence, cannot be said to be very purposeful. 9. The learned counsel appearing for the respondents would contend that this is the fourth time she failed to appear before the court resulting in passing exparte decree each time. Every time, the appellant used to come forward with one or the other reasons and the court entertained on all the three earlier occasions. This time the appellant did not produce any evidence giving an inference that she purposefully avoided appearance in court. 10. In **B.Madhuri Goud v. B.Damodar Reddy [(2012) 12 SCC 693]** , the Apex Court after referring to earlier decisions culled out the following principles as broad guidelines for deciding applications for condonation of delay: - i) There should be a liberal, pragmatic, justice-oriented, 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. 7 ## F.A.O.No.75 of 2021 - ii) 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. - iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. - iv) 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. - v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. - vi) 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. - vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. - viii) 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 8 ## F.A.O.No.75 of 2021 strict approach whereas the second calls for a liberal delineation. ix) 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. x) 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. xi) 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. xii) 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. xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 9 ## F.A.O.No.75 of 2021 ## 11. This Court in **Rafeek and another v.** ## **K.Kamarudeen and another [2021 (4) KLT 520]** has observed: '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 KHC 911 : (1987) 2 SCC 107 : AIR 1987 SC 1353 : 1987 (62) Comp Cas 370 : 1987 (66) STC 228 : 1987 (167) ITR 471]** , 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 KHC 4725 : (2013) 12 SCC 649 : 2013 (5) CTC 547]** . 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.” 12. In the light of the principles of law laid down in the above referred decisions, we are of the view that this is a case where a lenient view has to be taken. We deem it appropriate to give one more chance to the appellant to have a decision on merits by ordering costs to compensate for the 10 F.A.O.No.75 of 2021 inconvenience caused to the respondents. Hence, we proceed to allow this appeal. 13. The appeal is allowed on the condition of payment of a costs of Rs.7,500/- (Rupees seven thousand five hundred only) to the respondents. Pay costs within two weeks from today. On payment of the costs, O.S.No.24 of 2017 will stand restored on file. Both parties shall appear before the Sub Court, Punalur on 28.03.2022. 14. The is a suit for realisation of money, of the year 2017. Taking that into account, we direct the Sub Court, Punalur to dispose of the suit within a period of three months from the date of production of a certified copy of this judgment. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 11 F.A.O.No.75 of 2021 ## **APPENDIX OF FAO 75/2021** ## **PETITIONER ANNEXURES** |**Annexure A1**|**MEDICAL CERTIFICATE DATED 28/10/2021**| |---|---| ||**ISSUED TO THE APPELLANT FOM THE**| ||**JUBILEE**<br>**MEMORIAL**<br>**HOSPITAL,**| ||**THIRUVANANTHAPURAM.**| |**Annexure A2**|**COPY OF THE MEDICAL CERTIFICATE DATED**| ||**04.03.2022 ISSUED BY DR.MARY ALEXANDER**| ||**OF JUBILEE MEMORIAL HOSPITAL, PALAYAM,**| ||**THIRUVANANTHAPURAM**| |**Annexure A3**|**COPY OF THE MEDICAL CERTIFICATE DATED**| ||**25.02.2022 ISSUED BY DR.M.M.JACOB OF**| ||**JUBILEE MEMORIAL HOSPITAL, PALAYAM,**| ||**THIRUVANANTHAPURAM**| |**Annexure A4**|**COPY OF THE MEDICAL CERTIFICATE DATED**| ||**25.02.2022**<br>**ISSUED**<br>**BY**<br>**DR.BINDU**| ||**RAJAGOPAL**<br>**OF**<br>**JUBILEE**<br>**MEMORIAL**| ||**HOSPITAL, PALAYAM, THIRUVANANTHAPURAM**|