P. M. Nadeer @ Biju and Mrs. Jameela Basheer v ShiJi W/o JalaluDeen and Mr. P. M. A. Basheer

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` FRIDAY, THE 16[TH] DAY OF DECEMBER 2022 / 25TH AGRAHAYANA, 1944 ``` ``` MAT.APPEAL NO. 42 OF 2021 ``` ``` AGAINST THE ORDER DATED 24.02.2020 IN I.A.NO.2177 OF 2018 AND I.A.NO.2178 OF 2018 IN O.P.NO.829 OF 2016 OF FAMILY COURT, KOLLAM ``` ## **`APPELLANTS:`** ``` 1P.M. NADEER @ BIJU, AGED 39 YEARS, S/O P.M.A BASHEER, RESIDING AT P.M.A.BIJU VILLA, MANANAKKU, PERUMKULAM P.O.ALAMCODE, KEEZHATTINGAL VILLAGE, VARKALA TALUK, ``` ``` TRIVANDRUM DISTRICT, REPRESENTED THROUGH HIS POWER OF ATTORNEY HOLDER AJMAL CHARAVATHY, ``` ``` S/O SHAJAHAN, AGED 26 YEARS, RESIDING AT THANNIVILA VEEDU, KULAMUTTAM P.O.MANABOOR VILLAGE, VARKALA TALUK, TRIVANDRUM DISTRICT ``` ``` 2MRS. JAMEELA BASHEER, AGED 61 YEARS W/O P.M.A.BASHEER, ``` ``` RESIDING AT P.M.A BIJU VILLA, MANANAKKU, PERUMKULAM P.O.ALAMCODE, KEEZHATTINGAL VILLAGE, VARKALA TALUK, TRIVANDRUM DISTRICT ``` ``` BY ADVS.R.GOPAN SRI.SHAJIN S.HAMEED ``` ## **`RESPONDENTS:`** - **`1 SHIJI, W/O JALALUDEEN, RESIDING AT AJI NIVAS, VADAKKEVILA, VADAAKKEVILA DESOM, KOLLAM TALUK, KOLLAM FROM KOTTAKKAKAM WARD, KOTTAKKAKAM DESOM, KOLLAM TALUK, KOLLAM , RESIDING AT AJI MANZIL, KARAVAYAL, OYOOR P.O.KOTTARAKKARA.`** Mat.Appeal No.42 of 2021 2 ``` 2MR. P.M.A BASHEER, RESIDING AT P.M.A BIJU VILLAGE, PERUMKULAM P.O.MANANAKKU, KEEZHATTINGAL VILLAGE, ALAMCODE. ``` ``` BY ADV SRI.JOHNSON GOMEZ ``` ``` SRI C.S SUMESH - FOR R2 ``` ``` THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 16.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Mat.Appeal No.42 of 2021 3 ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellants are respondents 1 and 3 in O.P.No.829 of 2016 on the file of the Family Court, Kollam, which was one filed by the 1[st] respondent herein-wife of the 1[st] appellant, seeking a decree for recovery of money and gold ornaments. The appellants, who remained absent, were set ex-parte. The 1[st] respondent herein-wife filed an affidavit in lieu of chief examination and Exts.A1 to A4 were marked. By the judgment and decree dated 28.02.2017, the Family Court allowed O.P.No.829 of 2016 and the 1[st] respondent herein is granted a decree, which reads thus; “1) The petitioner is allowed to realise an amount of Rs.1,00,000/- with 12% interest from the respondents and their assets. - 2) The petitioner is also allowed to realise an amount of Rs.3,00,000/- with 12% interest from the respondents and their assets. - 3) The petitioner is also allowed to realise an amount of Rs.3,62,338/- with 12% interest from the respondents and their assets. - 4) The petitioner is also allowed to realise an amount of Rs.17,500/- being the value of movables with 12% interest from the respondents and their assets. - 5) The petitioner is also allowed to realise B schedule gold ornaments of its present marked value with 12% interest Mat.Appeal No.42 of 2021 4 from the respondents and their assets.” 2. The appellants filed I.A.No.2177 of 2018, an application under Order IX Rule 13 of the Code of Civil Procedure, 1908, seeking an order to set aside the ex-parte decree passed on 28.02.2017. The said application was supported by I.A.No.2178 of 2018, invoking the provisions under Section 5 of the Limitation Act, 1963, seeking condonation of delay of 478 days in filing I.A.No.2177 of 2018. By a common order dated 24.02.2020, the Family Court dismissed the application for condonation of delay and consequently dismissed the application to set aside the ex-parte order, with cost. Feeling aggrieved, the appellants are before this Court in this appeal, invoking the provisions under Section 19(1) of the Family Courts Act, 1984. 3. On 19.01.2021, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondents. In I.A.No.1 of 2021, this Court granted an interim order staying all further proceedings in E.P.No.11 of 2018 in O.P.No.829 of 2016 on the file of the Family Court, Kollam, on condition that the appellants shall furnish security for the decree amount to the satisfaction of the Family Court, Kollam, within a period of one month. Mat.Appeal No.42 of 2021 5 4. Today, when the matter is taken up for consideration, the 2[nd] respondent entered appearance through counsel. The 1[st] respondent has filed I.A.No.1 of 2022, seeking an order to vacate the interim order of stay granted by this Court on 19.01.2021, in I.A.No.1 of 2021. 5. Heard the learned counsel for the appellants, the learned counsel for the 1[st] respondent and also the learned counsel for the 2[nd] respondent. 6. The decree dated 28.02.2017 of the Family Court, which was sought to be set aside by filing I.A.No.2177 of 2018, is an ex-parte decree. On 28.02.2017, when O.P.No.829 of 2016 came up for consideration, there was no representation for the appellants and the 2[nd] respondent herein, who are respondents 1 to 3 before the Family Court. According to the 1[st] appellant, he had entrusted his brother, as Power of Attorney holder to conduct the case and adduce evidence on his behalf. The 1[st] appellant was abroad. The Power of Attorney holder did not enquire the details of the case from the Advocate’s office. The appellants came to know about the ex-parte decree only when they received notice in E.P.No.11 of 2018. The said application was filed along with I.A.No.2178 of 2018, for condoning the delay in filing the Mat.Appeal No.42 of 2021 6 aforesaid application, invoking the provisions under Section 5 of the Limitation Act. The 1[st] respondent decree holder did not file any counter in I.A.No.2178 of 2018. The learned counsel for the said respondent contended before the Family Court that the appellants herein deliberately absented from court on 28.02.2017. 7. The Limitation Act, 1963 was enacted by the Parliament to consolidate and amend the law for the limitation of suits and other proceedings and for purposes connected therewith. Section 5 of the Act deals with extension of prescribed period in certain cases. As per Section 5, any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. As per Explanation to Section 5, the fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this Section. Mat.Appeal No.42 of 2021 7 8. It is well settled that the Law of Limitation is founded on public policy to ensure that the parties to a litigation do not resort to dilatory tactics and seek legal remedy without delay. In an application filed under Section 5 of the Limitation Act, the court has to condone the delay if sufficient cause is shown. Adopting a liberal approach in condoning the delay is one of the guiding principles, but such liberal approach cannot be equated with a licence to approach the court-at-will disregarding the time limit fixed by the relevant statute. The acts of negligence or inaction on the part of a litigant do not constitute sufficient cause for condonation of delay. Therefore, in the matter of condonation of delay, sufficient cause is required to be shown, thereby explaining the sequence of events and the circumstances that led to the delay. 9. 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 enable the courts to apply the law in a meaningful manner, which subserves the ends of justice, that being the life-purpose for the existence of the institution of courts. Mat.Appeal No.42 of 2021 8 10. 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 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. Mat.Appeal No.42 of 2021 9 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 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. Mat.Appeal No.42 of 2021 10 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.” 11. 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 **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** Mat.Appeal No.42 of 2021 11 **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. 12. Having considered the materials on record and also the submissions made by the learned counsel on both sides, in the light of the law laid down in the decisions referred to supra, we find that, though the explanation offered by the appellants for condonation of delay of 478 days in filing I.A.No.2177 of 2018 is not fully satisfactory, that interlocutory application can be allowed on terms. 13. In the above circumstances, this appeal is allowed as follows; (i) The appellants shall pay Rs.5,000/- as cost to the 1[st] respondent herein, within a period of two weeks from the date of receipt of a certified copy o this judgment, and file a memo to that effect before the Family Court, Kollam. On such payment is being made, I.A.No.2178 of 2018 and I.A.No.2177 of 2018 will stand allowed, thereby condoning the delay and setting aside the ex-parte decree dated Mat.Appeal No.42 of 2021 12 28.02.2017 in O.P.No.829 of 2016 and the said original petition will stand restored to file. (ii) Since the original petition is of the year 2016, the Family Court, Kollam shall finally dispose of the same, as expeditiously as possible, at any rate, within a further period of four months. Sd/- ## **ANIL K.NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** **yd**