Rajesh Narayanan @ Pavanan v. K. Velappan Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 14[TH] DAY OF SEPTEMBER 2023 / 23TH BHADRA, 1945 FAO NO.13 OF 2021** **AGAINST THE ORDER DATED 17.09.2018 OF THE I ADDITIONAL SUB COURT, THIRUVANANTHAPURAM IN I.A NO.1666/2018 IN O.S NO. 776/2008** ## **APPELLANT/PETITIONER/DEFENDANT:** **RAJESH NARAYANAN @ PAVANAN AGED 59 YEARS, S/O.SANKARA NARAYANAN, RESIDING AT DEVIPRIYA, ANRA 3, AMMAN NAGAR, KARAKULAM P.O., THIRUVANANTHAPURAM, PIN - 695 564.** **BY ADVS. R.SUDHISH M.MANJU** ## **RESPONDENT/COUNTER PETITIONER/PLAINTIFF:** **K.VELAPPAN NAIR AGED 68 YEARS, S/O. KUTTAPPAN PILLAI, RESIDING AT SIVA PRASATHAM, SEMAN NAGAR, NEDUMKADU, KARAMANA P.O., THIRUVANANTHAPURAM, PIN - 695 002.** **BY ADVS. SRI.K.J.SAJI ISAAC DR.ELIZABETH VARKEY SRI.JITHIN SAJI ISAAC** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 23.08.2023, THE COURT ON 14.09.2023 DELIVERED THE FOLLOWING:** 2 F.A.O No.13 of 2021 ## **O R D E R / J U D G M E N T** ## P.G.Ajithkumar, J. ## C.M Application No.2 of 2021 This is an application filed under Section 5 of the Limitation Act, 1963. There is a delay of 745 days in filing this appeal. The petitioner appellant seeks to condone the delay on the grounds that owing to an inadvertent mistake on the part of the Advocate Clerk, application to get a certified copy of the order could not be submitted in time and also the appellant was not able to approach his counsel in time on account of COVID-19 restrictions. 2. A counter affidavit was filed by the respondent stating that the reason stated for condonation of the delay is insufficient. There is no justification for not making application for a certified copy for more than ten months. Even after obtaining a certified copy, there occurred a delay of nine months for filing the appeal which also has not been explained. 3. Heard the learned counsel appearing for the 3 F.A.O No.13 of 2021 appellant and also the learned counsel appearing for the respondent. 4. This appeal was filed during the period when there were restrictions on account of COVID-19. The period from 15.03.2020 till filing of this appeal shall not be counted for the purpose of Section 5 of the Limitation Act in view of the law laid down by the Apex Court in **In Re:Cognizance for Extension of Limitation [(2022) 3 SCC 117].** A ThreeJudge Bench of the Apex Court held that in computing the period of limitation for any suit, appeal, application or proceedings, the period from 15.03.2020 till 28.02.2022 shall stand excluded. Therefore, the appellant cannot be found fault with for not taking any action in the matter of filing the appeal during that period. It is true that the delay of 745 days occurred prior to 15.03.2020. That is essentially on account of the failure to submit an application to get a certified copy. The reasons stated are not fully sufficient to condone the delay. However, taking a lenient the delay of 745 days is condoned. This 4 F.A.O No.13 of 2021 petition is allowed. ## F.A.O No.13 of 2021 This is an appeal filed under Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908 by the defendant in O.S. No.776 of 2008 of the 1[st] Additional Sub Court, Thiruvananthapuram. He filed I.A Nos.1666 of 2016 for setting aside the ex parte decree dated 27.10.2011 in O.S No.776 of 2008. He also filed 1665 of 2016 for condonation of delay of 1692 days in filing the former application. Both those applications were dismissed as per the orders dated 17.09.2018. Those orders are under challenge in this appeal. There was a delay of 745 days in filing this appeal. The delay is condoned. 2. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 3. O.S No.776 of 2008 was filed by the respondent for realisation of an amount of Rs.10 lakhs and its interest from the appellant. On receipt of summons, the appellant entered 5 F.A.O No.13 of 2021 appearance and filed a written statement stating that no money was due from him and the suit document was obtained from him as a blank one, that too signed on behalf of a company. The appellant happened to be exparte and that resulted in passing a decree dated 27.10.2011. It is contended by the appellant that the counsel who was entrusted with his vakalath met with an accident and was bedridden. That was why the decree was happened to be passed ex parte. There was also lack of communication about passing of the decree. Only when he got notice in the execution petition, he came to know about the decree and immediately he filed I.A Nos.1665 of 2016 and 1666 of 2016. The Sub Court, Thiruvantnthapuram without stating any sustainable reason, had dismissed those petitions. It is true that an inadvertent misstatement in regard to the receipt of summons in the suit had occurred in the affidavit filed in support of the said petitions. The learned counsel appearing for the appellant would submit that the court below without appreciating that the statement in the affidavit was only an 6 F.A.O No.13 of 2021 inadvertent mistake on the part of the counsel, dismissed the petitions. The learned counsel would further submit that another opportunity should have been given to the appellant to file an additional affidavit explaining the real state of affairs. When the counsel of the appellant through whom the written statement was filed became incapable of appearing before the court, the right of the appellant to contest the suit should not have been denied. Thus the learned counsel maintained that there was sufficient reason for condonation of delay and to set aside the ex parte decree. 4. The learned counsel appearing for the respondent on 11.08.2023 submitted that the appellant had filed two petitions earlier to set aside the ex parte decree. No such details are found a place in the impugned order. Hence a report from the court below was called for. In the report dated 22.08.2023, the learned Sub Judge submitted the following facts: - “On 27.10.2011 the said suit was decreed exparte. On 25.11.2011 the defendant filed a I.A.No.7213/2011 to set aside the decree. On 04.09.2012 the said petition 7 F.A.O No.13 of 2021 was dismissed for default. Thereafter on 05.12.2012 the defendant filed a I.A.No.6293/2012 (sic.6923/2012) under Order IX Rule 7 C.P.C to restore I.A.No.7213/2011. He filed I.A.No.6224/2012 (sic.6924/2012) under Sec.5 of Limitation Act to condone delay of 93 days to file IA.No.6923/2012, Those petitions were also dismissed for default on 17.01.2013. Thereafter on 06.03.2013 the defendant filed IA.No.1192/2013 under Order IX Rule 7 to restore IA.No.6923/2012 and 6924/2012. He filed I.A.No 1191/2013 under Sec.5 of Limitation Act to condone delay of 70 days to institute 1191/2013(sic.1192/2013). On 23.06.2013 IA.No.1191/2013 was dismissed for default. I.A.No.1192/2013 was dismissed for default on 23.08.2013. It is seen from the case records that those petitions were again considered on 27.09.2013 and on 18.06.2015 both applications were dismissed for default.” 5. From the above, it is seen that I.A. No.1666 of 2016 is not the first application to set aside the decree dated 27.10.2011. The appellant filed I.A No.7213 of 2011 on 25.11.2011 to set aside the ex parte decree. Since that petition was dismissed for default, the appellant filed I.A Nos.6923 of 2012 and 6924 of 2012 to get the earlier application restored on file after condoning the delay. Those 8 F.A.O No.13 of 2021 petitions were dismissed for default on 17.01.2013. The appellant again filed I.A No.1191 and 1192 of 2013 for condonation of delay and restoration of earlier applications which were dismissed for default. I.A Nos.1191 and 1192 of 2013 were also dismissed for default on 23.08.2013. It appears that those applications, although were revived once were again dismissed for default on 18.06.2015. 6. The application filed by the appellant first to set aside the ex parte decree, namely I.A No.7213 of 2011 was dismissed for default on 04.09.2012. The successive applications for restoring I.A No.7213 of 2011 were also dismissed. In such a situation, the appellant was disentitled to file a fresh petition for setting aside the exparte decree. 7. When such a second application was filed as I.A No.1666 of 2016, nothing about the earlier applications was stated. When the first application for setting aside the _ex parte_ decree was dismissed for default, filing of a second application for the same purpose is barred by the provisions of Order IX Rule 9 read with Section 141 of the Code. Therefore 9 F.A.O No.13 of 2021 I.A No.1666 of 2016 is not maintainable. 8. I.A No.1665 of 2016 and I.A No.1666 of 2016 were filed on the premises that the appellant did not have any information about the suit earlier to his receiving notice in the Execution Petition. The records show that the said assertion is incorrect. He filed I.A No.7213 of 2011 for setting aside the ex parte decree as early as on 25.11.2011. Subsequently he filed several interlocutory applications. In the wake of filing of such petitions by the appellants, after passing of the decree on 27.10.2011, the appellant cannot feign ignorance of the decree prior to getting notice in the Execution Petition. That improbabilises the case of the appellant he has set out for condonation of delay of 1692 days. Thus, on merits also the appellant cannot succeed. It is true that the court below went on a wrong tangent. However, the facts are such that the appellant is disentitled from getting the delay, which is inordinate, condoned and the ex parte decree dated 27.10.2011 set aside. 9. In **Collector, Land Acquisition v. Katiji [(1987)** 10 ## F.A.O No.13 of 2021 **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. 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 a strict approach whereas the second calls for a liberal delineation. Para.21 of the judgment reads thus; 11 F.A.O No.13 of 2021 - "21. From the aforesaid authorities the principles that can broadly be culled out are: 21.1 There should be a liberal, pragmatic, justice - oriented, 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. 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 12 F.A.O No.13 of 2021 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. 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 13 ## F.A.O No.13 of 2021 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. This Court in **Rafeek and Another v. K. Kamarudeen and Another [2021 (4) KHC 34]** observed, “Though the expression 'sufficient cause' employed in S.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]** ” 12. After adverting to the above principles the Court in **Rafeek** (supra) held that it is well settled that the Law of Limitation is founded on public policy to ensure that the 14 ## F.A.O No.13 of 2021 parties to a litigation do not resort to dilatory tactics and seek legal remedy without delay. In an application filed under S.5 of the Limitation Act, the Court has to condone the delay only if sufficient cause is shown. 13. The period of delay is 1692 days and it is very long. The reason stated by the appellant are not convincing and, in fact, against facts. The appellant does not deserve leniency in the matter of condonation of delay in the light of the law laid down in the aforesaid decisions. In such circumstances, this appeal can only fail. In the result, this appeal is dismissed. No costs. ## Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** PV