Pankajavalliyamma and Anju P. Nair v Indira Devi

1 OP(C) No.1241 of 2022 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 12[TH] DAY OF OCTOBER 2022 / 20TH ASWINA, 1944 OP(C) NO. 1241 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENT IN CMA 5/2021 OF SUB COURT, ``` ## **`THIRUVALLA`** ``` AGAINST THE ORDER/JUDGMENT IN IA NOS 10 AND 11 OF 2021 IN OS 140/1997 OF MUNSIFF COURT, THIRUVALLA ``` ## **`PETITIONER/S:`** ``` 1PANKAJAVALLIYAMMA AGED 72 YEARS W/O PURUSHOTHAMAN PILLAI, RESIDING AT THEKKEKKOOTTU VEEDU, MANGANAM P.O, KOTTAYAM DISTRICT, PIN - 686018 2ANJU.P.NAIR AGED 33 YEARS D/O PURUSHOTHAMAN PILLAI, RESIDING AT THEKKEKKOOTTU VEEDU, MANGANAM P.O, KOTTAYAM DISTRICT , PIN - 686018 BY ADV R.NIKHIL ``` ## **`RESPONDENT/S:`** ``` INDIRA DEVI AGED 60 YEARS D/O GOWRI AMMA, RESIDING AT PURAYATTUKIZHAKKETHIL VEEDU, KAVUMBHAGOM MURI, KAVUMBHAGOM P.O, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN - 689102 BY ADV K.N.RADHAKRISHNAN (THIRUVALLA) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 OP(C) No.1241 of 2022 ## **C.S DIAS,J.** **--------------------------OP(C) No.1241 of 2022** **----------------------------Dated this the 12[th] day of October, 2022.** ## **JUDGMENT** Aggrieved by Ext P3 common order passed in IA Nos.10/2021 and 11/2021 in OS No.140/1997 of the Court of the Munsiff, Thiruvalla (Trial Court) and Ext P6 order in CMA No.5/2021 of the Court of the Subordinate Judge, Thiruvalla (Appellate Court), the appellants/additional plaintiffs 2 and 3 have filed the original petition. The respondent is the respondent /defendant before the courts below. 2. The skeletal facts, relevant for the determination of the original petition, are; (i) the petitioners are the additional plaintiffs 2 and 3 in the suit, which is filed against the respondent, for a decree of permanent prohibitory injunction. 3 OP(C) No.1241 of 2022 (ii) The suit was originally filed by Purushothaman Pillai (original plaintiff), the late husband of the first petitioner and the father of the second petitioner. (iii) The respondent resisted the suit by filing a written statement. Subsequently, the written statement was amended by incorporating a counter-claim for a decree of declaration. (iv) The suit was dismissed for default and the counter-claim was decreed on 22.8.2012. The original plaintiff filed IA No.2271/2012 to restore the suit to file, which was allowed. The original plaintiff died on 1.1.2018. (v) Recently, when the suit was listed for trial, the petitioners came to learn that, on 15.7.2004, the respondent had filed an application to amend the written statement so as to incorporate a counter-claim. The said application was not served on the petitioners or their counsel. (vi) In fact, on 18.12.2004, the suit was decreed exparte and the counter-claim was dismissed. The 4 OP(C) No.1241 of 2022 respondent challenged the decree by preferring AS No.58/2005 before the Appellate Court. The appeal was allowed and the matter was remitted back to the Trial Court. Thereafter, on 22.8.2012, the suit was again dismissed. (vii) The original plaintiff preferred an application to restore the suit, which was allowed by the Trial Court. As the copy of the counter-claim was not served on the petitioners or their Counsel, they were unaware of the counter-claim. The failure in not contesting the counterclaim is not willful. (viii) Accordingly, the petitioners filed IA Nos.10 and 11/2021 to set aside the ex parte decree passed in the counter-claim and to condone the delay of 3071 days in filing the application to set aside the ex parte decree, along with a written statement. (ix) By the impugned Ext P3 common order, the Trial Court dismissed both the applications. (x) Aggrieved by Ext P3 order, the petitioners filed CMA No.5/2021. The Appellate Court, by the 5 OP(C) No.1241 of 2022 impugned Ext P6 order, confirmed Ext P3. Exts P3 and P6 orders are erroneous and wrong. Hence, the original petition. 3. The respondent has filed a counter affidavit denying the allegations in the original petition, inter-alia, contending that the written statement was filed on 26.7.1999. Subsequently, an application was filed by the respondent seeking leave to amend the written statement to incorporate the counter-claim. The application was allowed on 29.7.2004 and the amendment was carried out on 6.8.2004. The case was adjourned to 12.8.2004 for the written statement of the original plaintiff to the counter-claim. The ‘B’ diary (Ext P7) produced by the petitioners substantiates the above sequence of events. The original plaintiff was not diligent in prosecuting the suit or the counter-claim. The counter-claim was decreed as early as on 22.8.2002. The original plaintiff died only on 1.1.2018. Later, the petitioners were impleaded as additional plaintiffs through a power of attorney holder. It is the power of 6 OP(C) No.1241 of 2022 attorney holder who has filed the applications to set aside the exparte decree in the counter-claim and to condone the delay. The power of attorney holder is unaware and is not competent to explain the reasons for the delay. The contention that the petitioners are unaware of the counter-claim filed in the written statement is incorrect because the suit was dismissed and the counter-claim was decreed the same by judgment. The suit is of the year 1997. It was dismissed on several occasions. The petitioners have not stated sufficient reasons to condone the delay of 3071 days. This Court in **Rafeek and another vs.K.Kamarudeen and another** [2021 (4) KHC 34] has categorically held that an application to condone the delay cannot be allowed in a routine manner. The courts below have rightly concluded that there is no sufficient cause to condone the delay of 3071 days. The original petition is devoid of any merit and is only to be dismissed. 7 OP(C) No.1241 of 2022 4. Heard; Sri.R.Nikhil, the learned counsel appearing for the petitioners and Sri.K.N Radhakrishnan, the learned counsel appearing for the respondent. 5. The point is whether there is any error or illegality in Exts P3 and P6 orders. 6. The suit was filed by the petitioners’ predecessor-in interest as early as on 6.2.1997. The respondent filed her written statement on 26.7.1999. As reflected from Ext P7 ‘B’ diary proceedings, the respondent filed IA No.1656/2004 for leave to amend the written statement, to incorporate the counter-claim. The application was allowed on 29.7.2004 and the amendment was carried out. The suit was adjourned to 6.8.2004, for filing of the written statement to the counter-claim. However, the original plaintiff did not file any written statement. 7. Undisputedly, the original plaintiff died only on 1.1.2018. During his life time itself, the suit was dismissed and the counter-claim was decreed on 8 OP(C) No.1241 of 2022 22.8.2012. On 31.7.2013, he filed IA No.2271/2012, to restore the suit with no prayer to set aside the ex-parte decree in the counter-claim. The said application was allowed and the suit was restored to file. 8. It is pertinent to point out that, the suit was dismissed and the counter-claim was decreed by one and the same judgment. Therefore, it is incorrect to state that the original plaintiff was unaware of the counter-claim being decreed. 9. It is nearly after a decade, on 17.2.2021, that the petitioners – the additional plaintiffs have filed IA Nos. 10 and 11 of 2021, that too through their power of attorney holder, to set aside the ex parte decree in the counter-claim and to condone the delay of 3071 days (8 years) in filing the application to set aside the ex parte decree, on the ground that they were not aware of the counter-claim. 10. The Trial Court, after appreciating the pleadings and materials on record, particularly the fact that the counter-claim was decreed during the life time 9 OP(C) No.1241 of 2022 of the original plaintiff and the present applications have been filed through a power of attorney holder of the petitioners, has concluded that the reasons stated in the application is insufficient to condone the inordinate delay of 3071 days. 11. The Appellate Court, after re-appreciating the entire matter, and after relying on the decisions of this Court in **Sabu Joseph vs. Kerala State Election Commission** [2020 (2) KLT 678], **Musthafa P.S vs.Nazeera Beegum and others** [2020 (6) KHC 474], **Rafeek and another vs.K.Kamarudeen and another** [2021 (4) KHC 34] and the decision of the Hon’ble Supreme Court in **Esha Bhattacharjee vs. Raghunathpur Nafar Academy** [(2013) 12 SCC 649], has also concluded that the reasons stated by the petitioners is insufficient to condone the delay of 3071 days. Hence, the courts below have concurrently arrived at the same conclusion. 10 OP(C) No.1241 of 2022 ## 12. 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.”** ## 13. Again in **Maniben Devraj Shah v. Municipal** ## **Corporation of Brihan Mumbai** [(2012) 5 SCC 157] the 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”.** 11 OP(C) No.1241 of 2022 14. The above position has been reiterreiterated 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: 21.8 (viii) **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.** 21.9 (ix) 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(x) **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.”** 15. Therefore, the law is succinctly laid down in the afore cited precedents that while considering an application to condone the delay, a routine explanation is not enough in the nature of indicating sufficient cause to justify the delay, which will depend on the back drop of each issue and which has to be weighed 12 OP(C) No.1241 of 2022 carefully by the courts based on the fact situation and in the case of inordinate delay, a strict approach is warranted as delay defeats equity. 16. I have re-considered the pleadings and materials on record, the findings of the courts below and the law laid down in the above decisions. 17. The counter-claim was decreed on 22.8.2012, during the life time of the original plaintiff. Therefore, there is no meaning in the petitioners stating that they were unaware of the counter-claim because the original plaintiff only died on 1.1.2018. Admittedly, the original plaintiff filed IA No.2271/2012 on 31.7.2013 to restore the suit. It is only the original plaintiff who can speak of this aspect and not the power of attorney holder of the petitioners, who is totally ignorant of the matter. 18. In the totality of the facts and circumstances of the case, and the law on the point, I hold that the reasons stated in the application to condone the long and inordinate delay of 3071 days is insufficient. The rights of the respondent has crystallized over the above period 13 OP(C) No.1241 of 2022 of time. It would be a travesty of justice to condone the delay and to set aside the ex-parte decree on the mere asking of the petitioners after a period of 8 years. I do not find any illegality or error in the concurrent findings of the courts below in the impugned orders warranting interference by this Court under Article 227 of the Constitution of India. The original petition fails and is dismissed. sks/12.10.2022 **Sd/- C.S.DIAS, JUDGE** 14 OP(C) No.1241 of 2022 ## **`APPENDIX OF OP(C) 1241/2022`** ``` PETITIONER EXHIBITS Exhibit1EXHIBIT P1-A TRUE COPY OF THE INTERLOCUTORY APPLICATION NUMBERED AS I.A NO: 10/2021 IN O.S NO:140 OF 1997 ON THE FILES OF THE HON'BLE MUNSIFF'S COURT, THIRUVALLA Exhibit2EXHIBIT P2-A TRUE COPY OF THE INTERLOCUTORY APPLICATION NUMBERED AS I.A NO: 11/2021 IN O.S NO:140 OF 1997 ON THE FILES OF THE HON'BLE MUNSIFF'S COURT, THIRUVALLA Exhibit3EXHIBIT P3-A TRUE COPY OF THE COMMON ORDER DATED 19.02.2021 PASSED BY THE HON'BLE MUNSIFF'S COURT, THIRUVALLA IN I.A NO:10/2021 AND I.A NO:11/2021 IN O.S NO:140 OF 1997 Exhibit4EXHIBIT P4-A TRUE COPY OF THE JUDGEMENT DATED 19.02.2021 PASSED BY THE HON'BLE MUNSIFF'S COURT, THIRUVALLA IN O.S NO:140 OF 1997 Exhibit5EXHIBIT P5-A TRUE COPY OF THE JUDGMENT DATED 16.02.2022 OF THIS HON'BLE COURT IN O.P(C) NO:313/2022 Exhibit6EXHIBIT P6-A TRUE COPY OF THE ORDER DATED 29.06.2022 OF THE HON'BLE SUBORDINATE JUDGES COURT, THIRUVALLA IN CMA NO:5 OF 2021 Exhibit7EXHIBIT P7-A TRUE COPY OF THE PROCEEDINGS IN O.S NO:140 OF 1997 ON THE FILES OF THE HON'BLE MUNSIFF'S COURT, THIRUVALLA ```