P. Gopakumar v. Rajani V.R

1 Mat.Appeal.No.785 OF 2020 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 12TH DAY OF JANUARY 2021 / 22TH POUSHA, 1942** **Mat.Appeal.No.785 OF 2020** **AGAINST THE ORDER/JUDGMENT IN OP 895/2011 OF FAMILY COURT,TRIVANDRUM dated 30.11.2013** ## **APPELLANT/S:** **P. GOPAKUMAR AGED 52 YEARS S/O. MADHAVIKUTTY AMMA, PARAMESWARETH, KOTTAKKAKATHU, THEVALLAKARA P.O., KARUNAGAPALLY, KOLLAM DISTRICT.** **BY ADVS. SRI.JUSTINE JACOB SRI.K.S.ARUN KUMAR SRI.P.S.VIJU RAJEE P MATHEWS SMT.AMRUTHA K P SMT.AMRUTHA P S** ## **RESPONDENT/S:** **RAJANI. V.R AGED 42 YEARS D/O. MAHESWARI AMMA, SHREYAS, TC 50/941/9, HSRAD 28(1), KARAMANA P.O., IRANNIMMUTTAM, THIRUVANANTHAPURAM.** ## **R1 BY ADV. SRI.B.MOHANLAL** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 12.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Mat.Appeal.No.785 OF 2020 **A.MUHAMED MUSTAQUE & C.S.DIAS, JJ. ====================== C.M.Appln No. 1 of 2020 in Mat.Appeal No.785 of 2020 ====================== Dated this the 12[th] day of January, 2021.** ## **ORDER** ## **C.S DIAS, J.** The application is filed to condone the delay of 2440 days (6.5 years) in filing the Mat.Appeal. 2. The petitioner who is the respondent in OP No.895/2011 of the Family Court, Thiruvananthapuram has sworn the affidavit in support of the application, inter alia, contending that during the course of the proceedings before the Family Court, the dispute between him and the respondent was settled in mediation on 20/8/2013. As per the terms of the mediation agreement, the parties agreed to file a joint petition to dissolve their marriage on mutual consent. The petitioner agreed to pay an amount of Rs.2,50,000/- towards full and final settlement of the monetary claim and return 28 sovereigns of gold ornaments. 3 Mat.Appeal.No.785 OF 2020 After the execution of the mediation agreement, while the petitioner was arranging for the money to comply with the agreement, his counsel informed him that the case was decreed on 30.11.2013. Subsequently, the respondent filed EP No.32/2019 and attached the property of the petitioner. Although the petitioner informed his counsel to file appropriate application to declare the judgment as void ab initio, nothing was done. It was only when the Surveyor deputed by the Court with an Advocate visited the property, the petitioner learnt about the execution proceedings. It was in the above circumstances, a delay of 2440 days has occurred in filing the appeal. There is no wilful laches or negligence on the part of the petitioner. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. The learned counsel appearing for the petitioner argued that the petitioner is prepared to comply with the terms and conditions agreed in Annexure-3 agreement executed between the respondent and the petitioner. 4 Mat.Appeal.No.785 OF 2020 However, the respondent is pursuing the execution proceedings and attempting to get the petitioner's valuable property sold in execution. There is no wilful laches or negligence on the part of the petitioner. Hence the application may be allowed and delay be condoned and the appeal may be heard on its merits. 5. The learned counsel appearing for the respondent vehemently opposed the application. He contended that the appeal itself is not maintainable particularly because the petitioner has suppressed material facts in the application and appeal. The petitioner had earlier approached this Court challenging the execution proceedings in OP(FC) 217/2019. This Court by judgment dated 17.6.2019 had dismissed the original petition. In light of the filing of OP(FC) 217/2019, the petitioner cannot be permitted to contend that he was not aware of the passing of the impugned judgment and also the filing of the execution proceedings before the execution court. Similarly, he argued that even though the dispute was settled in the mediation on 20.8.2013, the petitioner failed to comply with the terms 5 Mat.Appeal.No.785 OF 2020 and conditions of the mediation agreement. The petitioner had also not filed any written statement in the original petition. It was in the said circumstances that the Family Court passed the impugned judgment on 30.11.2013. It is more than seven years since the judgment was passed. Similarly, the execution proceeding is pending since 2015. There is no bonafides in the present application and appeal and the same may be dismissed. 6. The sole question that emerges for consideration in this application is whether the petitioner has assigned sufficient cause to condone the delay of 2440 days in filing the appeal. 7. In a recent decision, a three Judge Bench of the Hon'ble Supreme Court in **University of Delhi v. Union of India and others** [2019 KHC 7261] has held thus: “20.xxxxxxxxxxxxxxxxxx Even in such case the condonation of long delay should not be automatic since the accrued right or the adverse consequence to the opposite party is also to be kept in perspective. **In that background while considering condonation of delay, the routine explanation would not be enough but it should be in the nature of indicating “sufficient cause” to justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the Courts based on the fact situation.** xxxxxxxxxx”. 6 Mat.Appeal.No.785 OF 2020 ## 8. In **Pandlik Talam Patil vs Talgaou Medium Project [(2008) 17 SCC 448],** the Hon'ble Supreme Court has observed as follows: “17. …..The evidence on record suggests neglect of its own right for long time in preferring appeals. **The court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The court helps those who are vigilant and 'do not slumber over their rights.”** “29. It needs no restatement at our hands that the object for fixing time limit for litigation is based on public policy fixing a life span for legal remedy for the purpose of general welfare. **They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy** .” ## 9. Again in **Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai [(2012) 5 SCC 157] t** he Hon'ble Supreme Court has held thus: **“24.** What colour the expression “sufficient cause” would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. **If on the other hand, the explanation given by the application is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay”** . 7 Mat.Appeal.No.785 OF 2020 10. The above position has been reiterated by the Hon'ble Supreme Court in **Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and Others [** (2013) 12 SCC 649] by holding that: (i) **There is a distinction between inordinate delay and a delay of short duration of 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.** (ii) 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. (iii) **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.”** 11. Therefore, the law is succinctly laid down in the afore-cited precedents that while considering an application for condonation of delay, a routine explanation would not be enough in the nature of indicating sufficient cause to justify the delay which will depend on the back drop of each issue and which will have to be weighed carefully by the Courts 8 Mat.Appeal.No.785 OF 2020 based on the fact situation, and in the case of inordinate delay a strict approach is warranted and that “delay defeats equity”. 12. The sole explanation put forth by the petitioner in the affidavit filed in the application is that he had instructed his counsel appearing before the Family Court to submit that the judgment was void ab initio and he had also instructed to file appropriate application before the Family Court, Thiruvananthapuram to pass a judgment afresh. It is only when the Surveyor from the Court visited the property, the petitioner became aware of the filing of the execution proceedings and his property was put in public auction. 13. We had called for the judges' papers in OP(FC) 217/2019. It is seen from the materials available on record, the petitioner had approached this Court as early as on 2.4.2019, to permit him to remit the decree amount in EP 32/2018 pending on the file of the Family Court, Chavara, in monthly installments. This Court declined to interfere with the execution proceedings and dismissed the original petition on 17.6.2019. The contention in OP(FC) 217/2019 9 Mat.Appeal.No.785 OF 2020 was that the petitioner was not in a position to effectively conduct the case due to various ailments. Therefore, the averments in the OP(FC) 217/2019 and in the present affidavit are self contradictory and self-defeating. At any rate, from records in OP(FC) 217/2019, it is clear that the petitioner was aware that the impugned judgment was put to execution at least from 2.4.2019, i.e., on the date of filing of OP(FC) 217/2019. 14. In the above factual circumstances, the explanation put forth by the petitioner in the affidavit filed in support of the application that he became aware of the pendency of the execution proceedings only when the Surveyor from the Court went to measure the property is unbelievable. Therefore, we are of the considered opinion that the cause put forth by the petitioner does not impress us because it is not sufficient to condone the inordinate delay of 2440 days. Since the delay is inordinate, we are constrained to take a strict view in the matter as observed in **Esha Bhattacharjee** (supra). The rights of the respondent has crystallized over the passage of more than seven years. 10 Mat.Appeal.No.785 OF 2020 If the delay is now condoned and the appeal is admitted, it would cause severe prejudice and injustice to the respondent, for no fault of hers. Hence, we hold that there is willful laches and negligence on the part of the petitioner. Therefore, we are not inclined to condone the inordinate delay of 2440 days in filing the appeal. Resultantly, the application is dismissed. **SD/-** **A.MUHAMED MUSTAQUE JUDGE** **SD/-** **C.S.DIAS JUDGE** sks/12.1.2021 11 Mat.Appeal.No.785 OF 2020 **A.MUHAMED MUSTAQUE & C.S.DIAS, JJ. ====================== Mat.Appeal No.785 of 2020 ====================== Dated this the 12[th] day of January, 2021.** ## **JUDGMENT** ## **C.S DIAS, J.** In light of the order passed in C.M Appln No.1 of 2020, the Mat.Appeal is dismissed. All pending Interlocutory Applications are also dismissed. **Sd/-** **A.MUHAMED MUSTAQUE** **JUDGE** **Sd/-** Sks/12.1.2021 **C.S.DIAS JUDGE** 12 Mat.Appeal.No.785 OF 2020 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE**|**1**|**CERTIFIED COPY OF THE JUDGMENT AND DECREE**| |---|---|---| |||**DATED 30.11.2013 IN O.P.NO.895/2011 ON THE**| |||**FILES OF THE FAMILY COURT,**| |||**THIRUVANANTHAPURAM.**| |**ANNEXURE**|**2**|**TRUE COPY OF THE ORIGINAL PETITION**| |||**NO.895/2011.**| |**ANNEXURE**|**3**|**TRUE COPY OF MEDIATION AGREEMENT DATED**| |||**20.8.2013 BEFORE THE FAMILY COURT,**| |||**THIRUVANANTHAPURAM.**| |**ANNEXURE**|**4**|**TRUE COPY OF EXECUTION PETITION FILED**| |||**BEFORE THE FAMILY COURT,**| |||**THIRUVANANTHAPURAM.**| |**ANNEXURE**|**5**|**TRUE COPY OF THE DRAFT SALE PROCLAMATION IN**| |||**EP NO.32/2019, ON THE FILES OF THE FAMILY**| |||**COURT, CHAVARA.**|