Paul v. Johny and Others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` WEDNESDAY, THE 16[TH] DAY OF NOVEMBER 2022 / 25TH KARTHIKA, 1944 ``` ## `OP(C) NO. 1163 OF 2016` ``` IN OS 722/1993 OF PRINCIPAL SUB COURT,IRINJALAKUDA ``` ## `PETITIONER:` ``` PAUL, AGED 56 YEARS, S/O.LATE MULANGADAN OUSEPH @ KOCHAPPAN, CHIRAMEL HOUSE, KIZHAKE CHALAKUDY VILLAGE, MUKUNDAPURAM TALUK 680 001. ``` ``` BY ADVS.SRI.G.SREEKUMAR (CHELUR) SMT.SARITHA THOMAS SRI.ALEX.M.SCARIA ``` ## `RESPONDENTS:` - `1 JOHNY, AGED 61, S/O. LATE MULANGADAN OUSEPH, @ KOCHAPPAN, CHIRAMEL HOUSE, KIZHAKE CHALAKUDY VILLAGE, MUKUNDAPURAM TALUK, 680001` - `2 ROSILY, D/O.LATE MULANGADAN OUSEPH KOCHAPPAN CHIRAMEL HOUSE, KIZHAKE CHALAKUDY VILLAGE, MUKUNDAPURAM TALUK 680 001. (DIED, LRS IMPLEADED)` - `3 BABY D/O. LATE MULANGADAN OUSEPH @KOCHAPPAN, CHIRAMEL HOUSE, KIZHAKE CHALAKUDY VILLAGE, MUKUNDAPURAM TALUK. 680001` - `4 JOSE S/O. LATE MULANGADAN OUSEPH @KOCHAPPAN, CHIRAMEL HOUSE, KIZHAKE CHALAKUDY VILLAGE, MUKUNDAPURAM TALUK. 680001` - `5 ANTONY CHIRAMEL HOUSE, KIZHAKE CHALAKUDY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.` - `6 ANIL` ``` O.P.(C)No.1163/2016 ``` ``` -:2:- ``` ``` CHIRAMEL HOUSE, KIZHAKE CHALAKUDY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT ``` ``` 7DILRAJ CHIRAMEL HOUSE, KIZHAKE CHALAKUDY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT ( ADDITIONAL RESPONDENTS NO.5 TO 7 IMPLEADED AS LEGAL REPRESENTATIVES OF THE DECEASED R2 AS PER ORDER DATED 28.02.2020 IN IA NO.01/2018 ) ``` ``` BY ADVS.SMT.S.ANJUSHA SRI.K.S.BHARATHAN SRI.B.C.MENON ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(C)No.1163/2016 ``` ``` -:3:- ``` Dated this the 16[th] day of November,2022 ## **J U D G M E N T** Aggrieved and dissatisfied with the common order dated 16.01.2013 passed in I.A.Nos.2215 & 2216/2011 in O.S.No.722/2018(Ext P5) of the Court of the Additional Subordinate Judge, Irinjalakuda(Trial Court) and the judgment dated 31.07.2015 in C.M.A.No.25/2013 (Ext P6) of the Court of the Additional District Judge, Irinjalakuda (Appellate Court), the first defendant in the suit has filed the original petition. The respondents 1 to 3 were the plaintiffs and the fourth respondent was the second defendant in the suit. Pending the original petition, the second respondent died and her legal representatives have been impleaded as additional respondents 5 to 7. 2. The antecedent facts leading to Ext P5 & P6, in a narrow compass, are: the respondents 1 to 3 had ``` O.P.(C)No.1163/2016 ``` ``` -:4:- ``` filed the suit against the petitioner and the fourth respondent for declaration that the settlement deed bearing No.3824/1993 of the Chalakudy Sub Registrar Office is void ab initio and is not binding on the petitioner and the fourth respondent. No notice or summons was served on the petitioner. On 01.04.2011, an officer from the court went to the residence of the petitioner and served a copy of the final decree (I.A.No.2011/2011). Immediately, the petitioner verified the records and found that there was no personal service of summons on him. In fact, summons was received by his wife, as the petitioner was in Tamil Nadu in connection with his business. Accordingly, the petitioner filed I.A.No.2215 & 2216/2011(Exts P1 and P3) to set aside the ex-parte decree and to condone the delay of 15 years, 08 months and 20 days in filing Ext P1. The applications were resisted by the respondents through Exts P2 and P4 objections. An ``` O.P.(C)No.1163/2016 ``` ## `-:5:-` enquiry was conducted. The petitioner was examined as PW1 and two other witnesses were examined as DWs1 and 2. The Trial Court, by the impugned Ext P5 common order, dismissed Exts P1 and P3 applications. Even though the petitioner filed C.M.A.No.25/2013 before the Appellate Court, the appeal was dismissed by Ext P6 judgment. Exts P5 and P6 are palpably wrong, erroneous and unsustainable in law. Hence, the original petition. 3. Heard; Sri..G.Sreekumar (Chelur), the learned counsel appearing for the petitioner and Sri. K.S.Bharathan, the learned counsel appearing for the respondents 1 to 3. 4. The question is whether there is any illegality in Exts P5 & P6?. 5. The respondents 1 to 3 had filed the suit against the petitioner and the fourth respondent to declare that a settlement deed was null and void. The ``` O.P.(C)No.1163/2016 ``` ## `-:6:-` suit was decreed ex-parte on 13.10.1995. The petitioner filed Exts P1 and P3 applications to set aside the ex-parte decree and to condone the delay of 15 years, 08 months and 20 days in filing Ext P1 application. 6. The petitioner's case in Exts P1 and P3 applications is that, it was only when he received notice in the final decree application, on 01.04.2011, that he came to learn that an ex-parte decree was passed on 13.10.1995. On verification of his records, he learnt that his wife had received the notice. But, as the petitioner's wife is an illiterate lady, as she studied only up to 3[rd] standard, she did not inform the petitioner about the same. It is also understood that an Advocate had represented the petitioner on 16.02.1994, but he had not filed any vakalath. Even though an Advocate Commissioner was appointed, she did not execute the work and had returned the ``` O.P.(C)No.1163/2016 ``` ``` -:7:- ``` warrant. A false impression was created by the respondents 1 to 3, to show that the petitioner was appearing through a counsel. Hence, there is no willful latches on the part of the petitioner and the application to condone the delay of 15 years, 08 months and 20 days in filing the application to set aside the ex-parte decree may be allowed. 7. The respondents 1 to 3 opposed Exts P1 and P3 applications through Exts P2 and P4 counter statements, inter alia, contending that the petitioner had entrusted Adv. E.T. Thomas, to file the written statement in the suit. But, the petitioner had evaded the filing of the written statement. The petitioner had approached the said Advocate on 07.10.1997, and sought to set aside ex-parte decree. In fact, the respondents were served with the copies of the applications in 2007. However, the applications were not filed in court. There was another suit between the ``` O.P.(C)No.1163/2016 ``` ## `-:8:-` parties in respect of the same property as O.S.No.1332/1997, wherein the petitioner had appeared through a counsel named Adv. M.C. Chandrahazan. The allegation that the petitioner came to learn about the passing of the ex-parte decree only on 02.06.2011 is false. The attempt of the petitioner is to grab the property. The petitioner had entrusted the vakalath to Adv. E.T. Thomas earlier, who filed the application to set aside the ex-parte decree. The petitioner was examined as PW1 and the respondents 1 to 3 examined the clerk of Adv. E.T. Thomas as DW1 and Adv. E.T. Thomas as DW2, and Exts B1 and B2 were marked through them. The oral testimonies of DWs 1 and 2 and Exts B1 and B2 establish that the reasons stated in the application are false. The attempt of the petitioner is only to procrastinate the final determination of the suit. There is no merits in the applications and the same may be dismissed. ``` O.P.(C)No.1163/2016 ``` ``` -:9:- ``` 8. The Trial Court, after appreciating the pleadings and materials on record, particularly the oral testimonies of DWs 1 & 2 and the Exts B1 and B2, found that summons in the suit was served on the petitioner on 27.01.1999 and he was very much aware of the pendency of the suit. Further, the petitioner had contested O.S.No.1332/1997 before the same court through Adv. M.C. Chandrahazan. Earlier, a final decree application was filed as I.A.No.1076/1997 and the notice was served on the petitioner and the fourth respondent. However, that application was dismissed for default. Subsequently, the impugned final decree application was filed. DWs1 and 2 have proved the copies of the applications prepared on 07.10.1997, to set aside the ex-parte decree. All the above circumstances prove and establish that the petitioner was very well aware of the passing of the ex-parte decree. Thus, the Trial Court held that the reasons ``` O.P.(C)No.1163/2016 ``` ``` -:10:- ``` stated by the petitioner to set aside the ex-parte decree were false. Consequently, Ext P5 order was passed. 9. The Appellate Court, after re-appreciating the pleadings and materials on record, and the impugned common order passed by the Trial Court, confirmed Ext P5 order and re-iterated that the reasons stated by the petitioner were insufficient to condone the inordinate delay of 15 years, 08 months and 20 days. It is the above concurrent findings that are challenged in the original petition. 10. 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** ``` O.P.(C)No.1163/2016 ``` ## `-:11:-` **the backdrop of each case and will have to be weighed carefully by the Courts based on the fact situation.** xxxxxxxxxx”. [emphasis supplied] ## 11. In **Pundlik Jalam Patil v. Jalgaon 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** .” [emphasis supplied] ## 12. Again in **Maniben Devraj Shah v. Municipal** **Corporation of Brihan Mumbai** [(2012) 5 SCC 157] the Hon'ble Supreme Court has held thus: ``` O.P.(C)No.1163/2016 ``` ``` -:12:- ``` **“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”** . [emphasis supplied] 13. 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: 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. ``` O.P.(C)No.1163/2016 ``` ``` -:13:- ``` 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.”** [emphasis supplied] 14. Therefore, the law is succinctly laid down in the afore-cited precedents that, while considering an application for condonation of delay, a routine explanation is insufficient to indicate sufficient cause to justify the delay, which will depend on the back drop of each issue and will have to be weighed carefully by the Courts based on the factual situation. In the case of inordinate delay a strict approach is warranted because “delay defeats equity”. 15. A reading of Exts P5 order and P6 judgment rendered by the courts below, establish beyond any pale of doubt that there is willful latches and negligence on the part of the petitioner in filing Exts P1 and P3 applications to set aside the _ex-parte_ ``` O.P.(C)No.1163/2016 ``` ``` -:14:- ``` decree and condone the delay. The reasons stated in the applications are concocted and unacceptable. 16. It is an admitted fact that the petitioner's wife had received the summons in the suit. The evidence of DWs 1 and 2 and Exts B1 and B2 prove that the petitioner had made an attempt to set aside the ex-parte decree in 1997, but for reasons best known to him he did not file the application. Also, the earlier final decree application was served on him. 17. All the above material is sufficient to prove that the petitioner had full knowledge of the ex-parte decree. Moreover, the rights of the respondents have crystalised over the passage of more than one and half decades. It would be travesty of justice to set aside the ex-parte decree at this stage on the mere asking of the petitioner in a routine manner. As the delay is inordinate, I am obliged to take a strict view as laid down in **Esha Bhattacharjee** (supra). At this distance ``` O.P.(C)No.1163/2016 ``` ``` -:15:- ``` of time, I am not inclined to dislodge the crystalised rights of the respondents 1 to 3. I hold that the original petition is devoid of any merits and Ext P5 order and P6 judgment does not warrant any interference by this Court under Article 227 of the Constitution of India. The original petition fails and is hence dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/16.11.22 //True copy/ P.A.To Judge ``` O.P.(C)No.1163/2016 ``` ``` -:16:- ``` ## `APPENDIX` ``` PETITIONER EXHIBITS EXHIBIT P1 ``` ``` A TRUE COY OF THE IA NO.2215 OF 2011 IN OS NO.722 OF 93 ON THE FILE OF THE SUB COURT, IRINJALAKUDA DATED 21.6.2011 ``` - `EXHIBIT P2` ``` A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS 1 TO 3 HEREIN DATED 13.7.2011 TO EXT.P1 ``` ``` EXHIBIT P3A TRUE COPY OF THE IA NO.2216 OF 2011 IN OS NO.722 OF 93 ON THE FILE OF THE SUB COURT, IRINJALAKUDA DATED 21.6.2011 ``` - `EXHIBIT P4 A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS 1 TO 3 HEREIN DATED 13.7.2011 TO EXT.P1` - `EXHIBIT P5` - `A TRUE COPY OF THE COMMON ORDER PASSED IN IA NOS 2215 AND 2216 OF 2011 IN OS NO.722 OF 93 DATED 16.1.2013 ON THE FILE OF THE SOUB COURT, IRINJALAKUDA` - `EXHIBIT P6` ``` A TRUE COPY OF THE JUDGMENT IN APPEAL CMA NO.25 OF 2013 DATED 31.72015 ON THE FILE OF THE ADDL.DISTRICT COURT, IRINJALAKUDA. ``` ``` RESPONDENTS EXHIBITS: NIL ```