Radhakrishnan C. v. Deepthi

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 19[TH] DAY OF OCTOBER 2022/27TH ASWINA, 1944 MAT.APPEAL NO. 254 OF 2021** **AGAINST THE JUDGMENT DATED 31.12.2012 IN O.P.NO.1459 OF 2010 OF THE FAMILY COURT, KOTTAYAM AT ETTUMANOOR APPELLANT/RESPONDENT:** **RADHAKRISHNAN C.,** **AGED 42 YEARS, S/O.CHELLAPPAN ACHARY, PRANAVAM (THEVALLY GOPI SADANAM), PERUNNA P.O., PERUNNA KARA, CHANGANCHERRY TALUK, KOTTAYAM DISTRICT.** **BY ADV V.K.HEMA** ## **RESPONDENT/PETITIONER:** **R.DEEPTHI AGED 38, D/O. R.RADHAKRISHNAN ACHARY, KOLLAKKY HOUSE, THURAVOOR P.O., CHERTHALA TALUK, ALAPPUZHA DISTRICT, NOW RESIDING AT PUZHAKKARAYIL (KOLLAKKAL HOUSE), VAZHAPPALLY.P.O., CHANGANACHERY TALUK, KOTTAYAM DISTRICT.** **BY ADV P.C.HARIDAS** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON 12.10.2022, THE COURT ON 19.10.2022 DELIVERED THE FOLLOWING:** 2 Mat.Appeal No.254 of 2021 ## **ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ.** **-----------------------------------------------------------** **Mat.Appeal No.254 of 2021** **----------------------------------------------------------Dated this the 19[th] day of October, 2022** ## **ORDER/JUDGMENT** ## Ajithkumar, J. ## C.M.Appl.No.1 of 2021 This appeal was filed by the respondent in O.P.No.1459 of 2010 on the file of the Family Court, Kottayam at Ettumanoor. There is a delay of 2903 days in filing the appeal. Hence, the appellant filed this application under Section 5 of the Limitation Act, 1963, seeking to condone the said delay. 2. The appellant would contend that on account of the developments took place after rendering the impugned judgment, he was totally disabled to approach this Court for filing the appeal. His father committed suicide since the respondent made a false allegation that the father had molested her. As a result, the mental health of the appellant deteriorated and he has become a nomad. Father and brother of the respondent trespassed into the house of the appellant 3 Mat.Appeal No.254 of 2021 and ransacked the valuables from there. In the meantime, the appellant was arrested and detained in prison alleging that he defaulted payment of maintenance to the respondent. Those reasons stood in the way of his approaching a counsel and file the appeal. 3. The respondent filed a counter affidavit strongly refuting the contentions in the application. Entire allegations in the application are denied. It is contended that the father of the appellant committed suicide much before erupting the discord in the marital relationship of the appellant and the respondent. He committed suicide due to some other reason. It is totally incorrect that the mental health of the appellant was affected by the death of his father. It is also incorrect that he became a nomad. He has always been available in station and it is evident from the facts that he was sent to civil jail during the said period, that he assaulted the respondent in the court premises regarding which a criminal case was charged against him and that he used to appear in M.C.No.198 of 2016 filed by the respondent under Section 4 Mat.Appeal No.254 of 2021 127 of the Code of Criminal Procedure, 1974. On various occasions, the appellant promised to settle the issue involved in this appeal, but he did not fulfill his promise. When all such incidents transpired after the impugned judgment, the appellant cannot be heard to contend that he was disabled from approaching this Court for filing this appeal. Thus the respondent contended that the reasons furnished by the appellant are totally insufficient to condone the delay. 4. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 5. The delay is of 2903 days. The impugned judgment was rendered on 31.12.2012. The appellant stated that he obtained a certified copy of the judgment on 19.02.2013 itself. The delay being inordinate, he is obliged to explain the delay with sufficient reasons, if he has to be allowed to prosecute the appeal. The reasons stated by him are that following suicide of his father, he lost his mental equilibrium and became a nomad. He has not stated any further details, such as whether he had 5 Mat.Appeal No.254 of 2021 undergone treatment, when did he recover, where was he during all these periods and so on. The respondent, on the other hand, contended that during all these periods, the appellant has been available in station and ably pursuing the other litigations between the parties. An incident of physical assault by him on the respondent in the premises of the court and pendency of the criminal case arose on that incident, as also his detention in connection with non-payment of maintenance amount to the respondent and the children are pointed out to show that the appellant had every capacity to approach this Court for filing the appeal. The said contentions of the respondent stand unchallenged. Therefore, it is not able to act upon the affidavit of the appellant to find that he was mentally disrupted and not in a position to prefer the appeal in time. 6. 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, 6 Mat.Appeal No.254 of 2021 which subserves the ends of justice, that being the lifepurpose for the existence of the institution of Courts. 7. 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 an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged 7 Mat.Appeal No.254 of 2021 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 former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the 8 Mat.Appeal No.254 of 2021 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] ## 8. In **Rafeek and another v. K. Kamarudeen and** **another [2021 (4) KHC 34]** a Division Bench of this Court 9 Mat.Appeal No.254 of 2021 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. 9. Here, the delay is inordinate. The delay is of 2903 days. Therefore, the appellant has a heavy burden to explain and substantiate the reasons for such inordinate delay. Despite refuting the assertions of the appellant regarding the reason for the delay, he did not come forward with any material to substantiate the reasons stated by him for the delay. In the said circumstances, it can only be held that the 10 Mat.Appeal No.254 of 2021 appellant failed to substantiate any reason, much less sufficient reason for condonation of the delay. This application is liable only to be dismissed. 10. Hence, the application is dismissed. Mat.Appeal No.254 of 2021 Since the application for condonation of delay is dismissed, this appeal is dismissed. ## **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr