OP (FC) No. 13 of 2023 (Ravi Sabu v. Sajna, Jyothishmathi and Aleesha Mole)

# **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 30[TH] DAY OF JANUARY 2023 / 10TH MAGHA, 1944 OP (FC) NO. 13 OF 2023** **AGAINST THE ORDER/JUDGMENT IN EP 95/2016 IN OP NO.186 OF 2013 OF FAMILY COURT,ERNAKULAM** ## **PETITIONER/1ST JUDGMENT DEBTOR/1ST RESPONDENT:** RAVI SABU, AGED 53 YEARS S/O RAVI, VALIYAVEETTIL, CHERIYAKEEZHIL, KARUNAGAPPILLY, KOLLAM, PIN - 691583 BY ADVS. P.B.MUHAMMED AJEESH RAIEEZ M ASHRAF ## **RESPONDENTS/DECREE HOLDER&2ND AND 3RD JUDGMENT DEBTORS/PETITIONER & 2ND AND 3RD RESPONDENTS:** 1 SAJNA, D/O NAGULANKUMARAN, 15/2, NANDSMRITHI, VB LINE EXTENTION, GADAKPOOR, EAST MUMBAI, MAHARASHTRA PIN - 400077 2 JYOTHISHMATHI, AGED 72 YEARS, W/O RAVI, VALIYAVEETTIL, CHERIYAKEEZHIL, KARUNAGAPPILLY, KOLLAM, PIN – 691583. 3 ALEESHA MOLE, AGED 35 YEARS, W/O.RAVI SABU, VALIYAVEETTIL, CHERIYAKEEZHIL, KARUNAGAPPILLY, KOLLAM, PIN – 691583. BY ADVS. A. ABDUL JALEEL @ A.A JALEEL ABUBAKER FOR R1 M.A.SULFIA(K/841/2005) THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 30.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(FC) 13 of 2023 2 ## **J U D G M E N T** ## Anil K.Narendran, J. The petitioner is the 1[st] respondent in OP No.186 of 2013 on the files of the Family Court, Chavara, which is the one filed by the 1[st] respondent herein for recovery of gold ornaments. In that Original Petition, the Family Court, Chavara passed an _ex parte_ decree on 25.07.2013. Seeking an order to set aside the _ex parte_ decree, the petitioner filed Ext.P4, R.P.No.40 of 2022 in O.P.No.186 of 2013 accompanied by Ext.P5, I.A.No.1 of 2022 for condoning the delay of 3413 days in filing Ext.P4 application. The grievance of the petitioner is that during the pendency of Exts.P4 and P5 applications, the Family Court, Ernakulam is proceeding with E.P.No.95 of 2016 in O.P.No.186 of 2013. In such circumstances, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, the petitioner is before this Court in this Original Petition seeking a direction to Family Court, Chavara to consider and pass orders in Exts.P4 and P5 applications in a time bound manner and direct the Family Court, Ernakulam to keep in abeyance the OP(FC) 13 of 2023 3 execution proceedings in E.P.No.95 of 2016 in O.P.No.186 of 2013 till Exts.P4 and P5 applications are disposed of. 2. On 13.01.2023 when this Original Petition came up for admission, this Court issued notice to the respondents. The learned counsel for the petitioner was permitted to take out notice to the respondents through their counsel before the Family Court, Ernakulam, where E.P.No.95 of 2016 in O.P.No.186 of 2013 is pending consideration. 3. Heard the learned counsel for the petitioner and also the learned counsel for the 1[st] respondent. Respondents 2 and 3 are the mother and wife respectively of the petitioner. Therefore, service of notice on the said respondents is dispensed with. 4. In **Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649]** the Apex Court while summerising 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 4 OP(FC) 13 of 2023 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 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. OP(FC) 13 of 2023 5 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 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. OP(FC) 13 of 2023 6 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.” 5. In **Rafeek and another v. K. Kamarudeen and** **another [2021 (4) KHC 34 : (2021) 2 RCR (Rent) 223 :** **2021 AIR CC 2752]** a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party 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 **Collector, Land Acquisition v. 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** 7 OP(FC) 13 of 2023 **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. An application for condonation of delay should be drafted with careful concern and no court shall deal with such an application in a routine manner. Having considered the submissions made by the learned counsel on both sides, this Original Petition is disposed of by directing the Family Court, Chavara to consider Exts.P4 and P5 interlocutory applications and pass appropriate orders thereon, taking note of the objections of the 1[st] respondent herein as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment. In case the 1[st] respondent herein is yet to file objections in those interlocutory applications, the said respondent shall file objections within two weeks' from the date of this judgment. Till orders on Exts.P4 and P5 interlocutory applications are passed by the Family Court, any coercive steps OP(FC) 13 of 2023 8 against the petitioner in E.P.No.95 of 2016 in O.P.No.186 of 2013 shall be deferred. Sd/- **ANIL K.NARENDRAN JUDGE** Sd/- **P.G.AJITHKUMAR JUDGE** jg OP(FC) 13 of 2023 9 ## **APPENDIX OF OP (FC) 13/2023** ## PETITIONER'S EXHIBITS Exhibit P1 THE TRUE COPY OF THE ORDER DATED 10.07.2012 IN OP(HMA) NO. 583 OF 2010 PASSED BY THE FAMILY COURT, KOLLAM Exhibit P1[A] THE TRUE COPY OF THE OP NO. 181 OF 2012 DATED 30.01.2012 BEFORE THE FAMILY COURT, KOLLAM FILED BY THE 1ST RESPONDENT FOR RETURN OF MONEY AND GOLD ORNAMENTS Exhibit P1[B] THE TRUE COPY OF THE JUDGMENT DATED 25.07.2013 IN OP NO. 186 OF 2013 PASSED BY THE FAMILY COURT, CHAVARA Exhibit P1[C] THE TRUE COPY OF THE DECREE DATED 25.07.2013 IN OP NO. 186 OF 2013 PASSED BY THE FAMILY COURT, CHAVARA ExhibitP2 THE TRUE COPY OF THE EP NO. 95 OF 2016 IN OP NO 186/2013 DATED 24.12.2016 ON THE FILES OF FAMILY COURT, ERNAKULAM ExhibitP3 THE TRUE COPY OF AUCTION NOTICE DATED NIL ISSUED IN E.P.NO. 95 OF 2016 IN O.P. NO. 186 OF 2013 BY THE FAMILY COURT, ERNAKULAM AFFIXED IN THE PROPERTY OF THE PETITIONER Exhibit P4 THE TRUE COPY OF THE RP NO. 40 OF 2022 IN OP 186/2022 DATED 21.12.2022 FILED BEFORE THE HON'BLE FAMILY COURT, CHAVARA, KOLLAM DISTRICT ExhibitP5 THE TRUE COPY OF THE IA NO. 1 OF 2022 IN RP NO.40/2022 IN OP NO.186/2013 DATED 21.12.2022 ON THE FILES OF HON'BLE FAMILY COURT, CHAVARA, KOLLAM DISTRICT ExhibitP6 THE TRUE COPY OF THE PRELIMINARY OBJECTION DATED 24.12.2022 IN EP NO.95/2016 IN OP NO.186/2013 FILED BY THE PETITIONER BEFORE THE FAMILY COURT ERNAKULAM