Radhamani Amma v. V Arunkumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 16[TH] DAY OF NOVEMBER 2021 / 25TH KARTHIKA,** ## **1943** ## **FAO NO. 147 OF 2016** **AGAINST THE ORDER dated 16.03.2016 IN I.A.NOS452 AND 453 OF 2015 IN OS NO.72 OF 2012 OF THE SUB COURT, ALAPPUZHA** ## **APPELLANT:** ## **RADHAMANI AMMA** **AGED 72 YEARS, D/O.NANDINI AMMA, FROM THAYYIL HOUSE, MARANKULANGARA, KALAVOOR PO, KALAVOOR VILLAGE, AMBALAPPUZHA TALUK, NOW RESIDING AT NO.125, 1ST FLOOR 2ND STATE, VINAYAKA LAY OUT, VINAYAKA NAGAR, BANGALORE 560040.** **BY ADV SRI.K.RAVI (PARIYARATH)** ## **RESPONDENT:** **V ARUNKUMAR AGED 34 YEARS, AMINA APARTMENT, NEAR MATTUMMEL JUNCTION, THEVARA, KOCHI TALUK, PIN 682 001. BY ADV SRI.K.N.VENUGOPALA PANICKER** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 16.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** F.A.O.No.147 of 2016 2 ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellant is the defendant in O.S.No.72 of 2012 on the file of the Sub Court, Alappuzha, a suit filed by the respondent herein-plaintiff, seeking a decree for specific performance of an agreement for sale in respect of the plaint schedule property or in the alternative return of advance sale consideration of Rs.5,50,000/-. The appellant could not file written statement in the suit. She was set _ex parte_ and the court below passed an _ex parte_ decree on 19.10.2013. In order to execute the _ex parte_ decree, the plaintiff filed E.P.No.67 of 2014 in O.S.No.72 of 2012 before the Execution Court. Before the Execution Court, the appellant-judgment debtor entered appearance on 09.12.2014. Thereafter, on 28.05.2015, I.A.No.453 of 2015 was filed before the court below under Order IX Rule 13 of the Code of Civil Procedure, 1908, seeking an order to set aside the _ex parte_ decree and I.A.No.452 of 2015 was filed, seeking an order to condone the delay of 557 days in filing the above application. The plaintiff filed counter statement in I.A.No.452 of 2015, opposing the F.A.O.No.147 of 2016 3 relief sought for in that application. After considering the rival contentions, the Court below by the order dated 16.03.2016 dismissed I.A.No.452 of 2015, on a finding that the appellant has not shown sufficient reason for condonation of delay of 557 days in filing I.A.No.453 of 2015. Consequently, I.A.No.453 of 2015 was also dismissed, by the order dated 16.03.2016. Challenging the aforesaid orders, the appellantdefendant is before this Court in this appeal, which is one filed under Order XLIII Rule 1(d) of the Code of Civil Procedure. 2. On 14.06.2016, when this appeal came up for admission, this Court admitted the matter on file. In I.A.No.664 of 2016, notice was issued to the respondent and this Court has granted an interim order staying all further proceedings in E.P.No.67 of 2014 in O.S.No.72 of 2012, for a period of six months, on condition that the petitioner draws a fixed deposit in her name from a Nationalised Bank for an amount of Rs.5,00,000/- (Rupees Five Lakhs only) for a minimum period of one year and produce it before the court below marking lien in favour of that court, within a period of 45 days. F.A.O.No.147 of 2016 4 3. The interim order granted by this Court on 14.06.2016, which was extended till 05.03.2020. Today, when the matter is taken up for consideration, the appellant has filed I.A.No.2 of 2021, seeking an order to revive and extend the interim order granted in I.A.No.664 of 2016. 4. Heard the learned counsel for the appellantdefendant and also the learned counsel for the respondentplaintiff. 5. The issue that arises for consideration in this appeal is as to whether any interference is warranted on the impugned order dated 16.03.2016 in I.A.Nos.452 and 453 of 2015 in O.S.No.72 of 2012, whereby those applications filed by the appellant-defendant under Order IX Rule 13 of the Code of Civil Procedure, and Section 5 of the Limitation Act stands rejected. 6. The learned counsel for the appellant would contend that the appellant, at the time of execution of the sale deed and at the time of filing of the suit, was aged 70 years and was staying at Bangalore along with her daughter. The legal issues were being taken care of by her brother, who was in station. In F.A.O.No.147 of 2016 5 the affidavit filed in support of I.A.No.453 of 2015, the appellant has shown sufficient cause for condonation of delay of 557 days in filing I.A.No.452 of 2015, to set aside the ex parte decree. The appellant has also filed written statement, along with an application to accept the same. The learned counsel would submit that, in case this Court finds that the explanation offered in the affidavit filed in support of I.A.No.453 of 2015 is not fully satisfactory, considering the fact that the appellant is presently aged more than 80 years, who is even now residing at Bangalore along with her daughter, a lenient view may be taken and the delay may be condoned on terms. 7. Per contra, the learned counsel for the respondentplaintiff would contend that, in the absence of any satisfactory explanation offered by the appellant, in the affidavit filed in support of I.A.No.453 of 2015, the court below cannot be found fault in rejecting that application and consequently, rejecting I.A.No.452 of 2015. 8. The Limitation Act, 1963 was enacted by the Parliament to consolidate and amend the law for the limitation F.A.O.No.147 of 2016 6 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. 9. 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 F.A.O.No.147 of 2016 7 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. 10. 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. 11. 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 F.A.O.No.147 of 2016 8 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. 12. 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. An application for condonation of delay should be drafted with careful concern and no court shall deal F.A.O.No.147 of 2016 9 with such an application in a routine manner. 13. Order IX, Rule 13 of the Code provides for setting aside decree ex parte against defendant. As per sub-rule (1) of Rule 13, in any case in which a decree is passed _ex parte_ against a defendant, he may apply to the court which the decree was passed for an order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. As per the first proviso to sub-rule (1), where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also. As per the second proviso to sub-rule (1), no court shall set aside a decree passed _ex parte_ merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer F.A.O.No.147 of 2016 10 the plaintiff's claim. As per the Explanation, where there has been an appeal against a decree passed _ex parte_ under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that _ex parte_ decree. 14. In **G.P. Srivastava v. R.K. Raizada [(2000) 3 SCC 54]** in the context of an application filed under Order IX, Rule 13 of the Code, for setting aside an _ex parte_ decree, the Apex Court held that, the word ‘was prevented by any sufficient cause from appearing’ occurring in Order IX, Rule 13 of the Code must be liberally construed to enable the court to do complete justice between the parties, particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order IX, Rule 13 of the Code has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. 15. In **G.P. Srivastava** , the Apex Court held further F.A.O.No.147 of 2016 11 that, ‘sufficient cause’ for non-appearance refers to the date on which the absence was made a ground for proceeding _ex parte_ and cannot be stretched to rely upon other circumstances anterior in time. If ‘sufficient cause’ is made out for nonappearance of the defendant on the date fixed for hearing when _ex parte_ proceedings initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the _lis_ decided on merits. 16. In **Peeves Enterprises v. Muhammed Ashraf [2015 (3) KHC 981]** , relying on the law laid down by the Apex Court in **G.P. Srivastava** , a Division Bench of this Court held that, on an application filed under Order IX, Rule 13 of the Code of Civil Procedure, the court has to find out whether the erring party has made out sufficient cause for setting aside the F.A.O.No.147 of 2016 12 _ex parte_ decree. When no negligence or inaction is imputable to the erring party and the absence was not mala fide or intentional, the discretion has to be exercised in his favour, especially when the application is within the statutory time limit. In appropriate cases, the plaintiff can be compensated by adequate costs for the loss of time and the inconvenience caused to him. But any such condition shall not be too onerous. 17. In **Robin Thapa v. Rohit Dora [(2019) 7 SCC 359]** , the Apex Court condoned the delay in filing application under Order IX Rule 13 of the Code of Civil Procedure, 1908, to set aside the ex-parte decree dated 09.10.2014 of Civil Judge, Senior Division, Dehradun. That application was filed on 02.10.2015, which was supported by an application for condonation of delay. The trial court condoned the delay and allowed the application to set aside the ex-parte decree. That order was set aside by the High Court. On the facts of the case, the Apex Court noticed that the appellant came to be served with the notice of the execution proceedings through special messenger on 27.03.2015. Thus, the case of the F.A.O.No.147 of 2016 13 appellant that he came to know about the passing of the decree only on 17.11.2015 cannot be acted upon. In the execution of the decree, sale deed has been executed in favour of the respondent and it is only thereafter that despite the receipt of the notice dated 27.03.2015, the appellant has set up the case that he came to know about the passing of decree only several months thereafter. Considering the fact that the matter arises from a suit for specific performance, which is undoubtedly a discretionary relief, and since the appellant was prepared to deposit the entire amount spent by the respondent for getting the sale deed executed, the Apex Court found that the interest of justice demands that subject to putting the appellant on terms, he should be given an opportunity to contest a case. Accordingly, the appeal was allowed and the impugned order was set aside subject to the conditions that the appellant will deposit a sum of Rs.67,400/- towards stamp duty and registration charges paid by the respondent, within a period of one month from the date of judgment, in the execution court and a further deposit of Rs.50,000/- as cost to be paid to the respondent. A reading of the judgment of the F.A.O.No.147 of 2016 14 Apex Court would make it explicitly clear that the Apex Court has taken a lenient view considering the fact that the suit is one for specific performance and also the extent of delay, etc. 18. In the instant case, as already noticed hereinbefore, at the time of execution of the sale deed and at the time of O.S.No.72 of 2012 before the Sub Court, Alappuzha, the appellant was aged 70 years, who was residing along with her daughter. In the affidavit filed in support of I.A.No.453 of 2015, the appellant has stated that, when she received summons in the suit, the matter was entrusted with her brother for filing written statement. She was at Bangalore and was suffering from various ailments. She came to know about the _ex-parte_ decree, when she was served with the notice in the execution petition. She engaged her brother to file application to set aside the _ex-parte_ decree. However, he failed to file such an application, since his wife was admitted in the hospital. 19. In the impugned order dated 16.03.2016, the court below noticed that the appellant has not produced any documents to show that she was suffering from various illness F.A.O.No.147 of 2016 15 and undergoing treatment at Bangalore and that, the wife of her brother was laid up. In the affidavit, the appellant has not disclosed the date on which she came to know about the exparte decree and also the period during which she was laid up or the wife of his brother was laid up. It was in such circumstances that the court below dismissed I.A.No.452 of 2015. 20. 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 appellant in the affidavit filed in support of I.A.No.452 of 2015 is not fully satisfactory, considering the fact that she is a senior citizen, who is presently aged above 80 years, who is residing along with her daughter at Bangalore, and contesting the matter with the assistance of his brother, taking a lenient view, the delay of 557 days in filing the application to set _ex parte_ decree in O.S.No.72 of 2012 can be condoned on payment of a cost of Rs.30,000/-, out of Rs.5,00,000/deposited in fixed deposit, in terms of the interim order of this F.A.O.No.147 of 2016 16 Court dated 14.06.2016, marking lien in favour of the Sub Court, Alappuzha. 21. In the result, this appeal is allowed by setting aside the order dated 16.03.2016 in I.A.Nos.452 and 453 of 2015 in O.S.No.72 of 2012, on payment of cost of Rs.30,000/-, out of Rs.5,00,000/- deposited in fixed deposit, in terms of the interim order of this Court dated 14.06.2016, marking lien in favour of the Sub Court, Alappuzha. On payment of such cost, within three weeks from the date of receipt of a certified copy of this judgment, the _ex parte_ decree in O.S.No.72 of 2012 will stand set aside. The court below shall accept the written statement filed by the appellant, by allowing the interlocutory application filed for accepting the same. On payment of Rs.30,000/- as directed above, the court below shall lift the lien on the fixed deposit of Rs.5,00,000/- made in terms of the interim order of this Court dated 14.06.2016. 22. Since the suit is of the year 2012, the Sub Court shall dispose of O.S.No.72 of 2012, as expeditiously as possible, at any rate, within a period of five months, from the date of production of a certified copy of this judgment, if there F.A.O.No.147 of 2016 17 is no legal impediment. Both parties shall appear before the Sub Court, Alappuzha on **13.12.2021** . Sd/- **ANIL K. NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** **yd**