Ramesh K. v. A. Dijeesh Mosses

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` MONDAY, THE 3[RD] DAY OF JULY 2023 / 12TH ASHADHA, 1945 FAO NO. 2 OF 2023 ``` ``` AGAINST THE ORDER IN I.A.NO.1 & 5 OF 2021 IN O.S.NO.484 OF 2012 DATED 03.12.2022 OF THE SUB COURT, KANNUR APPELLANT/PETITIONER/DEFENDANT: ``` ``` RAMESH. K, S/O.NARAYANAN, AGED 49 YEARS, RESIDING AT "GANGA GOKULAM", HOUSE NO: 1/302A, PALLIKKUNNU PO, KANNUR TALUK THROUGH HIS POWER OF ATTORNEY HOLDER SMT. RAJANI RAMESH, D/O RETNAKARAN, AGED 44 YEARS, GANGA GOKULAM, NEAR KANATHUR TEMPLE, PALLIKKUNNU. P.O,KANNUR, PIN - 670004 ``` ``` BY ADVS.M.K.SUMOD ABDUL RAOOF PALLIPATH K.R.AVINASH (KUNNATH) VIDYA M.K. ``` ## **`RESPONDENT/RESPONDENT/PLAINTIFF:`** ``` A. DIJEESH MOSSES, AGED 38 YEARS S/O LATE DAVID.T.C, RESIDING AT RETREAT, TC NO:1253, CPGP LANE, SASTAMANGALAM, TRIVANDRUM NOW RESIDING AT "DIVYA DEEPAM", CHALAD,P.O, PADANNAPALAM, KANNUR, PIN - 670001 ``` ``` R BY ADVS.RAMESH BABU T C.K.SREEJITH(K/2048/1999) NAMITHA JYOTHISH(K/1106/2006) ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 03.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 FAO No.2 of 2023 ## **JUDGMENT** ## Anil K. Narendran, J. The appellant is the defendant in O.S.No.484 of 2012 on the file of the Sub Court, Kannur, a suit filed by the respondent hereinplaintiff for recovery of an amount of Rs.44,00,000/- together with interest and cost from the defendant. In that suit, the defendant was set _ex parte_ on 08.06.2018. Thereafter, an _ex parte_ decree was passed on 31.08.2018. The defendant was working abroad when he was set _ex parte_ and _ex parte_ decree was passed. The said fact is evident from Ext.A1 passport of the defendant. Instead of filing an application under Order IX Rule 13 of the Code of Civil Procedure, 1908, to set aside the _ex parte_ decree dated 31.08.2018 in O.S.No.484 of 2012, the defendant through his wife and power of attorney holder, filed I.A.No.12 of 2020 on 24.03.2020, to set aside the order dated 08.06.2018, along with an application to condone the delay of 626 days. On realising the mistake, those applications were withdrawn and I.A.No.5 of 2021 was filed before the Sub Court, under Order IX Rule 13 of the Code, to set aside the _ex parte_ decree dated 31.08.2018 in O.S.No.484 of 2012, along with I.A.No.1 of 2021 under Section 5 of the Limitation Act, 1963 to condone the delay of 1015 days in filing the former application. In I.A.No.1 of 2021, the extent of 3 FAO No.2 of 2023 delay was calculated from the date of the _ex parte_ decree, inclusive of the period from 24.03.2020 till the date on which I.A.No.12 of 2020 was dismissed as withdrawn. The reliefs sought for in I.A.Nos.1 and 5 of 2021 were opposed by the respondent-plaintiff, though no counter was filed. 2. Before the Sub Court, the power of attorney holder of the defendant was examined as PW1 and his passport was marked as Ext.A1. The plaintiff has not chosen to adduce any oral or documentary evidence. After considering the pleadings and evidence on record, the Sub Court dismissed those interlocutory applications by the order dated 03.12.2022. In the said order, the Sub Court noted the decision of this Court in **Thaha Kunju @** **Thaha Kutty v. Chandasehara Pillai [2021 (4) KLJ 525]** , cited by the learned counsel for the defendant, in order to contend that in an application under Section 5 of the Limitation Act, it is not necessary on the part of the applicant to explain each and every day’s delay; the decision of the Apex Court in **Esha Bhattacharjee** **v. Raghunathpur Nafar Academy [(2013) 12 SCC 649]** , cited by the learned counsel for the plaintiff, wherein it was held that the application for condonation of delay may be drafted with careful concern and not in a haphazard manner harbouring the notion that the court is required to condone the delay on the bedrock of the 4 FAO No.2 of 2023 principle that adjudication of a lis on merit is seminal to justice dispensation system; and also the decision in **Rafeeq and another v. K. Kamarudheen and another [2021 (4) KHC 34]** , wherein it was held that though the expression sufficient cause employed in Section 5 of the Limitation Act is adequately elastic to enable the court to apply the law in a meaningful manner which subserves the ends of justice, 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. 3. Before the Sub Court, the case of the defendant was that, since he was employed abroad, he could not contact his counsel. In the order dated 03.12.2022, the Sub Court arrived at a conclusion that the defendant has not shown sufficient cause to condone the delay of 1015 days in filing I.A.No.5 of 2021 to set aside the _ex parte_ decree dated 31.08.2018 in O.S.No.484 of 2012. Accordingly, both the applications ended in dismissal by the said order, which is under challenge in this appeal filed invoking the provisions under Order XLIII, Rule 1(d) of the Code of Civil Procedure. 4. On 06.01.2023, when this appeal came up for admission, this Court admitted the matter on file and issued notice 5 FAO No.2 of 2023 to the respondent by speed post, returnable by four weeks. In I.A.No.1 of 2023, this Court granted an interim order staying the execution of the judgment and decree in O.S.No.484 of 2012 of the Sub Court, Kannur, for a period of one month. The said interim order was extended by three months on 07.03.2023. 5. Heard the learned counsel for the appellant-defendant and also the learned counsel for the respondent-plaintiff. 6. The issue that arises for consideration in this appeal is as to whether any interference is warranted on the order dated 03.12.2022 of the Sub Court, Kannur, whereby I.A.Nos.1 and 5 of 2021 in O.S.No.484 of 2012 stand rejected for the reasons stated therein. The reasoning of the court below in paragraphs 19 to 22 of the order dated 03.12.2022 read thus; “19. On going through the petition it would reveal that even though the petitioner-defendant appeared in the suit proceeding through his counsel in the year 2012 itself and appointed a counsel he did not contact the counsel thereafter. He was not even ready to file a written statement by contacting his counsel. The case of the petitioner-defendant is that since he was employed abroad he could not contact his counsel. It is pertinent to note that admittedly the defendant used to come to India every year on vacation to meet his wife and children. But he did not care to contact his counsel to make an enquiry to get the details of the development of his case. 20. It is pleaded that when he contacted his neighbour in the 6 FAO No.2 of 2023 year 2018 after six years of the entrustment of the case he got information from his neighbour that the suit was decreed ex parte and the execution application was pending to execute the ex parte decree. The PW1, the Power of Attorney holder of the petitioner-defendant had no such case that the petitionerjudgment debtor got information about the case only from his neighbour that too in the year 2018 during her examination. The case of the PW1 is that she got information about the case not from her husband but from the counsel when she approached the counsel with a copy of the execution application which was affixed at her house. The petitionerdecree holder had not even ready to depose the facts which entitle him to get the decree to be set aside before the court and face cross-examination. There is no evidence before the court to prove that the petitioner got sufficient cause for not appearing before the court when it was posted for hearing. The petitioner-judgment debtor has not examined the Advocate to prove that he failed to communicate the development of the case entrusted to him to the petitionerjudgment debtor. 21. On appreciating the evidence before the court it would reveal that the above applications are filed at the instance of PW1 the wife of the judgment debtor to get the protection to her property from being sold in a public auction for the realisation of the decree debt. The remedy of the PW1 the wife of the judgment debtor to protect his property from the public auction for the realisation of the decree debt is to apply under Order XXI Rule 58 of the CPC to get the attachment order to be vacated by proving her exclusive title over the property not to file an application to set aside ex parte decree passed against the judgment debtor without adducing sufficient and reliable evidence on behalf of the judgment debtor. The 7 FAO No.2 of 2023 petitioner cannot file applications under Order IX Rule 13 of CPC one by one after years without stating the sufficient reason for not proceeding with the first application. 22. On appreciating the evidence in the light of pleading it would reveal that there is no sufficient ground to condone the delay of 1015 days to file an application to set aside a decree dated 31.08.2018 on O.S.No.484 of 2012. The petitioner also failed to prove that there was sufficient cause for his nonappearance for trial on 08.06.2018 before the court to get the ex parte decree set aside.” 7. The Limitation Act, 1963 was enacted by the Parliament to consolidate and amend the law for the limitation 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. 8. It is well settled that the Law of Limitation is founded on 8 FAO No.2 of 2023 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 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. 9. 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. ## 10. In **Esha Bhattacharjee v. Raghunathpur Nafar** **Academy [(2013) 12 SCC 649]** the Apex Court while summerising the principles applicable while dealing with an 9 FAO No.2 of 2023 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 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 10 FAO No.2 of 2023 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 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 11 FAO No.2 of 2023 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. In **Esha Bhattacharjee** , after summerising the principles applicable while dealing with an application for condonation of delay, the Apex Court added some more guidelines taking note of the present day scenario, that an application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. Para.22 of the judgment reads thus; “22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:— 22.1 An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. 22.2 An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. 12 FAO No.2 of 2023 22.3 Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. 22.4 The increasing tendency to perceive delay as a nonserious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.” ## 12. In **Rafeek and another v. K. Kamarudeen and** ## **another [2021 (4) KHC 34 : (2021) 2 RCR (Rent) 223 : 2021** **AIR CC 2752]** a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party 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. An application for condonation of delay should be drafted with careful concern and no court shall deal 13 FAO No.2 of 2023 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 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 14 FAO No.2 of 2023 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 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 non-appearance 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 15 FAO No.2 of 2023 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 _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 the instant case, I.A.No.5 of 2021 filed by the appellant-defendant under Order IX Rule 13 of the Code to set aside the _ex parte_ decree dated 31.08.2018 in O.S.No.484 of 2012 16 FAO No.2 of 2023 was supported by I.A.No.1 of 2021, an application filed under Section 5 of the Limitation Act to condone the delay of 1015 days in filing the former application. The appellant was set _ex parte_ on 08.06.2018 and thereafter an _ex parte_ decree was passed on 31.08.2018. On both the aforesaid dates, the appellant was abroad. The said fact is not in serious dispute. Insofar as the extent of delay of 1015 days sought to be condoned by filing I.A.No.1 of 2021 is concerned, it is not in dispute that, seeking an order to set aside the _ex parte_ order dated 08.06.2018, the appellantdefendant filed I.A.No.12 of 2020 through his wife and power of attorney holder, on 24.03.2020, along with an application to condone the delay of 626 days. Later, on realising the fact that an order in I.A.No.12 of 2020 setting aside the order dated 08.06.2018 will not automatically set aside the _ex parte_ decree dated 31.08.2018, unless it is challenged by filing an application under Order IX Rule 13 of the Code, the appellant through his wife and power of attorney holder, filed I.A.Nos.1 and 5 of 2021. 18. **In Re:Cognizance for Extension of Limitation [2021 (5) KHC 508]** a Three-Judge 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 12.10.2021 shall stand excluded. As already noticed hereinbefore, 17 FAO No.2 of 2023 on 24.03.2020, the appellant-defendant filed I.A.No.12 of 2020 to set aside the _ex parte_ order dated 08.06.2018. If the delay is calculated for the period from 31.08.2018 till 15.03.2020, the actual extent of delay sought to be condoned by filing I.A.No.1 of 2021 is 560 days, instead of 1015 days. 19. The appellant-defendant was set _ex parte_ for the first time in O.S.No.484 of 2012 on 08.06.2018, followed by the _ex parte_ decree dated 31.08.2018. During the relevant time, he was abroad at his workplace and the applications were filed before the Sub Court through his wife and power of attorney holder. The actual extent of delay is 560 days. In the facts and circumstances of the case, it cannot be said that the absence of the appellant- defendant on 08.06.2018 or 31.08.2018 was _mala fide_ or intentional. The actual extent of delay in filing I.A.No.5 of 2021 is 560 days. Considering the explanation offered in the affidavit filed in support of I.A.No.1 of 2021 and the oral testimony of the wife and power attorney holder of the appellant, who was examined as PW1 are sufficient to make out a case for condonation of the delay on payment of cost. 20. Accordingly, this appeal is allowed by setting aside the order dated 03.12.2022 of the Sub Court, Kannur in I.A.Nos.1 and 5 of 2021 in O.S.No.484 of 2012, on payment of cost of 18 FAO No.2 of 2023 Rs.10,000/- (Ten thousand only) by the appellant-defendant to the respondent-plaintiff, by depositing the same before the Sub Court, Kannur, within a period of two weeks from the date of receipt of a certified copy of this judgment. On such deposit being made, I.A.No.5 of 2021 will stand allowed, after condoning the delay of 560 days sought to be condoned in I.A.No.1 of 2021, and thereby restoring O.S.No.484 of 2012 to file. Thereafter, the Sub Court shall proceed with O.S.No.484 of 2012 and finally dispose of the same, as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a certified copy of this judgment. Both parties are directed to appear before the Sub Court, Kannur, on **18.07.2023** . Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** AV/6/7