P K Fathima v. Ameera 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 THURSDAY, THE 27[TH] DAY OF JULY 2023 / 5TH SRAVANA, 1945 F.A.O. NO. 39 OF 2022** **AGAINST THE ORDER DATED 23.12.2021 IN RPIA NO.8 OF 2020 IN I.A.NO.1 OF 2020 IN O.S.NO.19 OF 2017 OF THE SUB COURT, HOSDRUG** ## **APPELLANT/PETITIONER/PLAINTIFF*:** **P K FATHIMA** **AGED 72 YEARS** **D/O.ABDULKHADER AND W/O. P.ABDULRAHIMAN, RESIDING AT MUBARAK MANZIL, THEKKEPURAM, AJANUR VILLAGE, HOSDURG TALUK, P.O.MANIKOTH, KASARAGOD DISTRICT-671 315** ***STATUS OF THE APPELLANT IS SUO MOTU CORRECTED AS “APPELLANT/ PETITIONER/1ST DEFENDANT” AS PER THE ORDER DATED 17.03.2022.** ## **BY ADV A.ARUNKUMAR** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS**:** - **1 AMEERA AGED 37 YEARS** **W/O.ABDULLA, SHAHUL MANZIL, AJANUR VILLAGE, P.O MANIKOTH, HOSDURG TALUK, KASARAGOD-671 315.** - **2 MUHAMMED SHAFI, AGED 52 YEARS, S/O. P.ABDULRAHIMAN, RESIDING AT MUBARAK MANZIL, THEKKEPURAM, AJANUR VILLAGE, HOSDURG TALUK, P.O.MANIKOTH, KASARAGOD DISTRICT-671 315.** 2 F.A.O.No.39 of 2022 - **3 ABDUL AREEF, AGED 50 YEARS, S/O. P.ABDULRAHIMAN, RESIDING AT MUBARAK MANZIL, THEKKEPURAM, AJANUR VILLAGE, HOSDURG TALUK, P.O.MANIKOTH, KASARAGOD DISTRICT-671 315.** - **4 ABDUL GAFOOR,** - **AGED 48 YEARS, S/O. P.ABDULRAHIMAN, RESIDING AT MUBARAK MANZIL, THEKKEPURAM, AJANUR VILLAGE, HOSDURG TALUK, P.O.MANIKOTH, KASARAGOD DISTRICT-671 315.** - **5 AYISHA,** - **AGED 42 YEARS, D/O. P.ABDULRAHIMAN, RESIDING AT MUBARAK MANZIL, THEKKEPURAM, AJANUR VILLAGE, HOSDURG TALUK, P.O.MANIKOTH, KASARAGOD DISTRICT-671 315.** - **6 SAFIYA** - **AGED 40 YEARS, D/O. P.ABDULRAHIMAN, RESIDING AT MUBARAK MANZIL, THEKKEPURAM, AJANUR VILLAGE, HOSDURG TALUK, P.O.MANIKOTH, KASARAGOD DISTRICT-671 315.** - **7 RUKHIYA, AGED 39 YEARS, D/O. P.ABDULRAHIMAN, RESIDING AT MUBARAK MANZIL, THEKKEPURAM, AJANUR VILLAGE, HOSDURG TALUK, P.O.MANIKOTH, KASARAGOD DISTRICT-671 315.** - **8 SOUDHA, AGED 38 YEARS, D/O. P.ABDULRAHIMAN, RESIDING AT MUBARAK MANZIL, THEKKEPURAM, AJANUR VILLAGE, HOSDURG TALUK, P.O.MANIKOTH, KASARAGOD DISTRICT-671 315.** - **9 SHIHABUDHEEN, AGED 35 YEARS, S/O. P.ABDULRAHIMAN, RESIDING AT MUBARAK MANZIL, THEKKEPURAM, AJANUR VILLAGE, HOSDURG TALUK, P.O.MANIKOTH, KASARAGOD DISTRICT-671 315.** 3 F.A.O.No.39 of 2022 ****STATUS OF THE RESPONDENTS IS SUO MOTU CORRECTED AS “RESPONDENTS/RESPONDENTS/ PLAINTIFFS AND DEFENDANTS 2 TO 8” AS PER THE ORDER DATED 17.03.2022.** **R1 BY ADV T.K.VIPINDAS** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 27.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 4 F.A.O.No.39 of 2022 ## **JUDGMENT** ## P .G. Ajithkumar, J. This is an appeal filed under Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908. The appellant is the 1[st] defendant in O.S.No.19 of 2017 on the file of the Sub Court, Hosdurg. An exparte decree was passed in the suit on 20.07.2018. The appellant has filed RPIA No.8 of 2020 to set aside the decree along with I.A.No.1 of 2020 to condone the delay of 832 days. The Sub Court dismissed those applications as per separate orders dated 23.12.2021. Those orders are under challenge in this appeal. 2. On 17.03.2022, the status of the parties in the cause title was _suo motu_ corrected. This appeal was admitted on the same day directing service of notice on the respondents. As per order in I.A.No.1 of 2022 interim order staying operation of the decree dated 20.07.2018 was granted for a period of one month, which was extended from time to time. 3. Heard the learned counsel apeparing for the appellant and the 1[st] respondent-plaintiff. 5 F.A.O.No.39 of 2022 4. The suit was filed by the 1[st] respondent seeking a decree of recovery of money. The appellant and respondents 2 to 9 were the defendants. The case of the 1[st] respondent is that the defendants together had executed an agreement dated 07.07.2017 agreeing to sell an immovable property for a sale consideration of Rs.1,25,00,000/- on receipt of an advance sale consideration of Rs.1,22,00,000/-. But the defendants did not come forward to execute the sale deed after receiving the balance sale consideration and hence the suit was filed. The appellant would contend that she could not appear in court and contest the suit on the belief that the manager of her elder son should have taken care of the case. She further contended that she was suffering from various diseases and was not in a position to appear before the court. 5. The 1[st] respondent filed a counter refuting the contentions of the appellant. The 1[st] respondent contended that the appellant received summons in the suit as is evident from Ext.B1 and that she appeared in the execution proceedings and contested that matter. It is contended that 6 F.A.O.No.39 of 2022 the applications were filed by the appellant without any bona fides and there is no ground for condonation of the delay of 832 days. Before the Sub Court, the appellant gave evidence as PW1. DW1 was examined and Exts.B1 to B5 were marked on the side of the 1[st] respondent. The Sub Court did not accept the evidence of PW1 as sufficient to prove the cause for the delay. The Sub Court held that the appellant and the other defendants received summons in the suit and contested the execution proceedings. Long thereafter only these applications were filed and therefore the applications were found lacking bona fides. 6. The learned counsel appearing for the appellant would submit that on the belief that the matter could be settled amicably, the appellant did not immediately after receiving notice in the execution petition, filed application to set aside the exparte decree. The learned counsel would submit that although received summons, the appellant was totally incapacitated during that time from appearing before the court due to various ailments. Further, she was under the 7 F.A.O.No.39 of 2022 impression that her elder son and his manager, would have done the needful, in the suit. The learned counsel appearing for the 1[st] respondent, on the other hand, would submit that respondent No.2 to 9 instigated their mother to file the applications and also this appeal setting forth false reasons. In the view of the learned counsel for the 1[st] respondent, the reasons stated by the appellants are not genuine and totally insufficient to condone the delay. 7. The appellant is aged more than 72 years. From her evidence it is seen that she has been suffering from various ailments. There are enough materials to show that the appellant was aware of the proceedings much earlier to the filing of the present applications. In that view of the matter, the reasons stated by the appellant for condonation of delay cannot be said to be sufficient or fully satisfactory. 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 8 F.A.O.No.39 of 2022 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. 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 9 F.A.O.No.39 of 2022 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. 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 10 F.A.O.No.39 of 2022 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. 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] 11 F.A.O.No.39 of 2022 ## 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 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. In the light of the law laid down in the aforesaid decisions, this is a case where a lenient delineation can be taken. Although the delay is long, considering the age of the appellant and the reason for the delay, we are of the 12 F.A.O.No.39 of 2022 view that she is entitled to get an opportunity for contesting the suit, subject to payment of costs to mitigate the inconvenience caused to the 1[st] respondent. Accordingly, this appeal is allowed on payment of a cost of Rs.10,000/(Rupees ten thousand only). The appellant shall pay the cost to the 1[st] respondent within two weeks from today. On such payment, the decree as against the appellant will stand set aside. The appellant and the 1[st] respondent are directed to appear before the Sub Court, Hosdurg on 24.08.2023. Since the suit is of the year 2017, there shall be a direction to the Sub Court, Hosdurg to dispose of the suit within four months from the date of appearance of the parties. 12. The learned counsel appearing for the 1[st] respondent submitted that the property belonging to the defendants in the suit is under attachment. We make it clear that the said attachment will continue and that the decree as against the appellant/1[st] defendant alone is set aside by this judgment and this judgment is not a bar against execution of 13 F.A.O.No.39 of 2022 the decree against the other defendants. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr