OP (C) No. 1147 of 2022 vs O.S. No. 68/2002, Sub Court, Kottarakkara

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 3[RD] DAY OF JANUARY 2024 / 13TH POUSHA, 1945** ## **OP(C) NO. 1147 OF 2022** **AGAINST OS 68/2002 OF ASSISTANT SESSIONS COURT/SUB** ## **COURT,KOTTARAKKARA** ## **PETITIONERS/RESPONDENTS 1, 3 & 4 OF 2021 & 1ST PLAINTIFF & LEGAL** ## **HEIRS OF 2ND PLAINTIFF IN O.S.NO.68/2002:** 1 JAYABHARATHAM FINANCIERS REPRESENTED BY ITS MANAGING PARTNER P.T.SUBHASH BABU, JAYABHARATHAM BUNGLOW, ARAMPUNNA, PUNALUR, PIN - 691322 2 BENNY, S/O VARGHESE, KARIMARATHINAL, MULLASSERI, PRAMADAM VILLAGE, PATHANAMTHITTA DISTRICT, PIN - 689646 3 REJI D/O.RAJU VARGHESE, JAYABHARATHAM BUNGLOW, ARAMPUNNA, PUNALUR, PIN - 691322 BY ADVS. MOHAN JACOB GEORGE P.V.PARVATHY (P-41) REENA THOMAS NIGI GEORGE ## **RESPONDENTS/PETITIONERS IN I.A.3 & 4/2021 & LEGAL HEIRS OF 1ST DEFENDANT IN O.S.NO.68/2002:** 1 SYAMALA MURALEEDHARAN AGED 63 YEARS, W/O MURALEEDHARAN, RESIDING AT AJANTHA, BHARANICAVU WARD, PUNALUR VILLAGE, PIN - 690520 2 AKHILESH S/O. MURALEEDHARAN, RESIDING AT AJANTHA, BHARANICAVU WARD, PUNALUR VILALGE, PIN - 690520 3 ARCHANA, D/O,. MURALEEDHARAN, RESIDING AT AJANTHA, BHARANICAVU WARD, PUNALUR VILLAGE, PIN - 690520 BY ADVS. K.SASIKUMAR S.ARAVIND(K/1206/2006) P.S.RAGHUKUMAR(K/500/2015) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **O.P.(C).No. 1147 of 2022** ..2.. ## **J U D G M E N T** ## _**Dated this the 3[rd] day of January, 2024**_ **Ext.P9 order is under challenge, which condoned a whopping delay of 2009 days (5 ½ years approximately) in filing a petition, to restore an application to set aside the** _**ex-parte**_ **decree. The suit, O.S.No.68/2002, was decreed** _**ex-parte**_ **on 30.09.2013. On 19.11.2013, the defendants filed two interlocutory applications, I.A.Nos. 2474 & 2475 of 2013, the former to set aside the** _**ex-parte**_ **decree and the latter to condone the delay. Both interlocutory applications were dismissed for default on 17.08.2015. After more than 5 years, on 18.02.2021, the defendants in the suit preferred two interlocutory applications, I.A.Nos. 2 & 3 of 2021, the former to restore I.A.No.2475/2023 and the latter to condone the delay of 2009 days in filing I.A.No.2/2021. By the impugned Ext.P9 order, the delay was condoned and** **O.P.(C).No. 1147 of 2022** ..3.. **I.A.No.2475/2023 was restored on files. In doing so, the learned Munsiff took stock of Ext.A1 Medical Certificate issued by PW2, a Doctor at Punalur, certifying that the 1[st] petitioner was undergoing treatment for Inter Vertebral Disc Prolapse (I.V.D.P); that the subject suit of the year 2002, which was rejected for non-payment of Court fee, was restored only in the year 2013; that the decree was an** _**ex-parte**_ **one; that though the original defendants attempted to restore the decree, they passed away in the meantime and their legal representatives had to pursue the matter; that the petitioners in the court below, who have no litigation experience, were not properly guided by their counsel and that the 1[st] petitioner had to relocate to Bangalore to reside along with her children, which prevented her from attending and pursuing the case properly. Premised on the above facts, the learned Munsiff was of the opinion that the issued involved, deserves a very liberal approach and the delay has to be condoned, so as** ## **O.P.(C).No. 1147 of 2022** **==> picture [37 x 8] intentionally omitted <==** **to enable a decision on merits. The learned Munsiff went on to hold that a major portion of the delay in disposing the subject suit, which is more than 20 years old, is attributable to the plaintiffs. Holding so, the delay was condoned and the application to set aside the** _**ex-parte**_ **decree was restored on files.** **2. Heard Sri.Mohan Jacob George, learned counsel for the petitioners and Sri.K.Sasikumar, on behalf of the respondents.** **3. Learned counsel for the petitioners submit that an application for condonation of delay should not be dealt with in a routine manner and that in cases where there is inordinate delay - which attracts doctrine of prejudice - a strict approach is warranted. It was emphasized that no reason, whatsoever, has been stated in the impugned order, as regards the 'sufficient cause' to condone the delay. Learned counsel pointed out** ## **O.P.(C).No. 1147 of 2022** ..5.. **that, the Court below grievously erred in blaming the plaintiff for the pendency of the case for a period more than 20 years, since that was no relevant consideration at all, while addressing the sufficient cause to condone the delay in seeking restoration of a petition to set aside the** _**ex-parte**_ **decree. Learned counsel also pointed out that the legal heirs of the original 2[nd] defendant were not impleaded in I.A.Nos.2 & 3 of 2021, despite objection raised by the petitioners. Exts.P8 and P8(a) orders, which allowed I.A.Nos.6 & 7 of 2022, to carryout an amendment to cure a defect in the cause title, were also collaterally challenged by the petitioners. On the aforereferred premise, the petitioners seek Ext.P9 order to be set aside.** **4. Refuting the above allegations, learned counsel for the respondents submitted that the suit of the year 2002 based on a pro-note, claimed to have been executed in connection with a chitty** ## **O.P.(C).No. 1147 of 2022** ..6.. **transaction, was filed against a father and son (defendants 2 & 1 respectively), who were aged 89 and 46 years at the time of filing the suit. After filing the written statement, on 31.10.2005, the suit was rejected for non-payment of Court fee. After 4 years, the suit was restored with a condition that the petitioners shall pay balance Court fee within a period of seven days, which was also not done. Therefore, the suit was again rejected on 27.10.2009. A Regular First Appeal was preferred before this Court as R.F.A. No.325/2010, which was allowed on payment of cost of Rs.25,000/-. It was accordingly that the suit was restored. By the time, the suit got restored, both the defendants became more aged and the 1[st] defendant/son fell ill due to Kidney disease. Although, a petition to set aside the ex-parte decree was filed on 19.11.2013, the 1[st] defendant/ son passed away on 13.05.2014. On 05.01.2015, the 2[nd] defendant/father also died. Pursuant to the death of the 1[st] defendant, the 1[st] petitioner in** ## **O.P.(C).No. 1147 of 2022** ..7.. **the restoration petition, who is wife of the 1[st] defendant, left to Bangalore to reside along with her children. She was ill and suffering from various ailments and also labouring under the impression that their counsel would take care of their interest in the suit, which however, did not happen. It was in such circumstance that, the petition to set aside the** _**ex-parte**_ **decree was dismissed on 17.08.2015. Interlocutory applications were filed to restore the petition to set aside the** _**ex-parte**_ **decree, along with a petition to condone the delay on 18.02.2021. It was specifically pointed out by the learned counsel for the respondents that, although, an** _**exparte**_ **decree was passed on 30.09.2013 and that the application to set aside the same was dismissed as early as on 17.08.2015, no execution petition was filed, until the petitioners herein filed I.A.Nos. 2 & 3 of 2021. The Execution Petition was filed thereafter, only on 31.01.2022. According to the learned counsel, the respondents are entitled to a** ## **O.P.(C).No. 1147 of 2022** ..8.. **lenient view and a liberal approach in the matter of condonation of delay, especially, in the context of the peculiar facts and circumstances of this case, wherein want of due diligence on the part of the plaintiff as well is writ large from the facts above referred.** **5. Having heard the learned counsel appearing on both sides, this Court is of the view that, the impugned Ext.P9 order warrants no serious interference, except to render the same subject to payment of cost. In arriving at such a conclusion, this Court primarily takes stock of the peculiar and unfortunate fact situation, to which the defendants were put to. As already indicated, the suit was filed in the year 2002, at which point of time itself, the 2[nd] defendants/father was 89 years old and the 1[st] defendant/son was 46 years old. The suit was initially rejected for non-payment of court fees on 31.10.2005. The suit was, however, restored back on files after four years, with a condition that the plaintiff will pay balance** ## **O.P.(C).No. 1147 of 2022** ..9.. **Court fee within a period of 7 days, the noncompliance of which, led to the second rejection of the plaint on 27.10.2009. The suit was ultimately restored back on files by virtue of Ext.R1(b) judgment of this Court dated 10.04.2013, upon payment of cost of Rs.25,000/-. It could thus be seen that, a suit of the year 2002, happened to be dragged for a period of 11 years without any serious progress, only on account of the delay, laches and absence of diligence on the part of plaintiffs. It is true that these aspects are not very relevant while considering the present delay and laches on the part of the defendants in seeking to restore a petition to set aside the** _**exparte**_ **decree. Nevertheless, the relevance is only in the context of the things which transpired to the defendants in the meantime, that is to say, the 2[nd] defendant becoming aged about 100 years and the 1[st] defendant becoming seriously sick due to kidney disease. Thus, the delay virtually prevented the defendants from defending the suit** **O.P.(C).No. 1147 of 2022** **==> picture [44 x 9] intentionally omitted <==** **properly, only because of the long pendency of the matter for a period of 11 years, without having any substantial progress in the suit. It is not disputed that the 1[st] defendant/son passed away first on 13.05.2014 due to kidney disease and the 2[nd] defendant/father also died on 05.01.2015. Although the suit was decreed** _**ex-parte**_ **against the defendants on 30.09.2013, an application to set aside the** _**ex-parte**_ **decree was filed as early as on** **19.11.2013, the delay therein is minimal which was liable to be condoned, had the matter been prosecuted by the defendants. On account of the death of both the defendants, the wife and children of the 1[st] defendant had to shoulder the responsibility of defending the suit and prosecuting the application to set aside the** _**exparte**_ **decree. It is true that there occurred a delay of more than 5 years on their part to file necessary application to restore the petition to set aside the ex-parte decree, which petition got dismissed on 17.08.2015. The reasons stated in** ## **O.P.(C).No. 1147 of 2022** ..11.. **Ext.P4 application is that, pursuant to the death of the 1[st] defendant, the 1[st] petitioner/wife left to Bangalore to reside along with her children, who are the respondents 2 & 3 herein. It was also pleaded that there was none to help her, in her native place and that she was suffering from various illness. The case was entrusted to Adv.G.C. Kannan, to safe guard their interest. He, however, did not choose to inform the respondents herein about any development in the case. The long and short of the explanation offered by the respondents herein is that, the first respondent/wife was suffering from various illness, which prevented her from prosecuting her cause diligently. In support of the said case, PW2 - a Doctor at Punalur - was examined to show that the first petitioner was suffering from Inter Vertebral Disc Prolapse (I.V.D.P). On merits, it is respondents' case that, a document which has been produced as a promissory note, along with the plaint is not a promissory note at all; that** ## **O.P.(C).No. 1147 of 2022** ..12.. **the suit is not liable to be allowed; and that the interest granted at the rate of 18% per annum is not justified on any account, whatsoever.** **6. This Court notice that the discretion bestowed under Section 5 of the limitation Act has already been exercised by the learned Munsiff in favour of the respondents. The role of this Court, in exercise of its supervisory jurisdiction under Article 227, is only to ensure the correctness and propriety of the course adopted by the learned Munsiff. In the light of the peculiar facts which have been adverted to in detail herein above, this Court is of the opinion that the course adopted by the learned Munsiff cannot be found fault with. A scan of the precedents on the point commencing from** _**Collector, Land Acquisition, Anantnag and Another**_ **v. Mst** _**Katiji and Others**_ **[1987 (2) SCC 107], would unerringly indicate that when substantial justice and technical considerations are pitted against each other, substantial justice** ## **O.P.(C).No. 1147 of 2022** ..13.. **should prevail, provided the delay is nondeliberate. In the absence of gross negligence, deliberate inaction or utter lack of** _**bona fides**_ **, an application to condone the delay should receive a liberal consideration, so as to advance the cause of substantial justice. In other words, it is not the length of the delay that virtually matters. Instead, it is the sufficiency of the cause, as also, whether any accrued right has crystallized in favour of the opposite party is what which is more decisive. In the instant case, it is obvious that there is delay and laches on the part of the defendants, wherefore, the suit happened to be decreed** _**ex-parte**_ **. An application to set aside** _**ex-parte**_ **decree was also dismissed for non-prosecution. There is substantial delay in seeking restoration of that application to set aside ex-parte decree. However, the peculiar facts which led to the long pendency of the suit from 2002 to 2013, the delay virtually preventing the defendants from defending the suit effectively on** ## **O.P.(C).No. 1147 of 2022** ..14.. **account of their death in the year 2014 and 2015 respectively, the peculiar circumstances under which the widow had to move herself to Bangalore, her disease, which to some extent is substantiated by the evidence of PW2, all would only persuade this Court to uphold the call taken by the learned Munsiff. This Court is of the opinion that a plausible explanation has been offered by the respondents herein for the delay caused. On the question of crystallization of rights in favour of the petitioners, this Court, at the risk of her petition, would iterate that in respect of a decree, which was passed as early as on 30.09.2013, an Execution Petition was filed only on 31.01.2022, that too after Ext.P4 application was filed seeking a restoration of the application to set aside the** _**ex-parte**_ **decree.** **7. The overall facts and circumstances, would persuade this Court to confirm Ext.P9 order, but on terms. Accordingly Ext.P9 order is made** **O.P.(C).No. 1147 of 2022** ..15.. **subject to payment of cost of Rs.25,000/- (rupees twenty five thousand only) to be paid by the respondents to the petitioners within a period of one month from the date pronouncement of this judgment. This Original Petition is allowed to that limited extent and Ext.P9 order shall stand modified as indicated above.** Sd/- **C. JAYACHANDRAN JUDGE** **TR** **O.P.(C).No. 1147 of 2022** ..16.. ## **APPENDIX OF OP(C) 1147/2022** PETITIONER EXHIBITS Exhibit9 COPY OF COMMON ORDER DATED 05.04.2022 IN IA NOS.2 & 3/2021 IN O.S.NO.68/2002 Exhibit1 COPY OF THE RELEVANT PORTION OF PLAINT IN O.S.NO.68/2002 OF THE SUB COURT, KOTTARAKKARA Exhibit2 COPY OF THE JUDGEMENT DATED 30.09.2013 IN O.S.NO.68/2022 OF THE SUB COURT, KOTTARAKKARA Exhibit3 COPY OF EXECUTION PETITION IN O.S.NO.68/2002 Exhibit4 COPY OF IA NO.2/2021 IN O.S.NO.68/2002 OF SUB COURT, KOTTARAKKARA Exhibit4(a) COPY OF IA NO.3/2021 IN O.S.NO.68/2002 OF SUB COURT, KOTTARAKKARA Exhibit5 COPY OF OBJECTION SUBMITTED IN IA 2/2021 IN O.S.NO.68/2002 OF SUB COURT, KOTTARAKKARA Exhibit5(a) COPY OF OBJECTION SUBMITTED IN IA 3/2021 IN O.S.NO.68/2002 OF SUB COURT, KOTTARAKKARA Exhibit6 COPY OF IA NO.6/2022 IN O.S.NO.68/2002 OF SUB COURT, KOTTARAKKARA Exhibit7 COPY OF THE OBJECTIONS FILED IN IA 6 & 7/2022 IN O.S.NO.68/2002 OF SUB COURT, KOTTARAKKARA Exhibit8 COPY OF ORDER DATED 19.03.2022 IN IA 6/2022 IN OS NO.68/2002 OF SUB COURT, KOTTARAKKARA Exhibit8(a) COPY OF ORDER DATED 19.03.2022 IN IA NO.7/2022 IN OS NO.68/2002 OF SUB COURT, KOTTARAKKARA RESPONDENT EXHIBITS Exhibit-R1(a) True copy of the Written statement in O. S. No. 68 of 2002 of the Sub Court, Kottarakara dated.22.11.2003 Exhibit-R1(b) True copy of the judgment in R.F.A. No. 325 of 2010 before the Honourable High Court of Kerala dated.10.4.2013 Exhibit R1(c) A TRUE COPY OF THE PETITION AND AFFIDAVIT DATED 30-05-2022 IN I.A. NO. 11/2022 IN I.A. NO. 2475/2013 IN O.S. NO. 68/2002 ## **O.P.(C).No. 1147 of 2022** ..17.. Exhibit R1(d) A TRUE COPY OF THE ORDER DATED 16-082022 IN I.A. NO. 11/2022 IN O.S. NO. 68/2002 OF THE SUB COURT, KOTTARAKARA