Reena Sujeth v. Sony Eldos

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 15[TH] DAY OF JULY 2022 / 24TH ASHADHA, 1944** **F.A.O NO.59 OF 2020** **AGAINST THE ORDER IN I.A.No.326 OF 2019 & I.A.NO.327 OF 2019** **IN O.S.NO.46 OF 2017 OF SUB COURT, DEVIKULAM** ## **APPELLANT/PETITIONER/DEFENDANT:** **REENA SUJETH AGED 50 YEARS W/O.P.S.SUJETH, PUTHENPURACKAL HOUSE, THRIKKANARVATTOM DESOM, ERNAKULAM VILLAGE, MANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN-682 018 BY ADV. PRAVEEN K. JOY** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **SONY ELDOS S/O.K.K.ELDOS, AGED ABOUT 52 YEARS, KALAPPURAM HOUSE, KOTHAMANGALAM KARA, KOTHAMANGALAM VILLAGE, KOTHAMANGALAM TALUK, ERNAKUAM DISTRICT,PIN-686 691 BY ADVS. SRI.SOORAJ T.ELENJICKAL SRI.C.R.SYAMKUMAR SRI.K.ARJUN VENUGOPAL SHRI.ASWIN KUMAR M J SMT.HELEN P.A.** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 04.07.2022, THE COURT ON 15.07.2022 DELIVERED THE FOLLOWING:** 2 F.A.O.No.59 of 2020 ## **J U D G M E N T** ## Ajithkumar, J Defendant in O.S No.46 of 2017 before the Sub court, Devikulam is the appellant. An ex parte decree against her was passed in the suit on 12.12.2018. So she filed I.A.No. 326 of 2019 for setting aside that decree and I.A.No.327 of 2019 under Section 5 of the Limitation Act to condone the delay of 324 days. The Sub Court, Devikulam as per a common order dated 18.03.2020 dismissed both the applications. Challenging the said order, the appellant has filed this appeal under Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908. 2. On 03.07.2020, notice was ordered to the respondent. Order of interim stay for a period of four weeks was granted. The order of interim stay has been extended subsequently. 3. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 4. Case of the appellant is that after transfer of the 3 ## F.A.O.No.59 of 2020 case from Sub Court, Kattappana to Sub Court, Devikulam, she has entrusted the matter to a lawyer there. But as a result of some mistake on the part of that lawyer, she could not appear before the court resulting in passing of the ex parte decree dated 12.12.2018. The contention of the appellant is that the respondent is a total stranger who has filed the suit on the basis of a concocted document. On the request of the appellant, the suit document was ordered to be sent for examination in the Forensic Science Laboratory, but without waiting for the report, the case was decided without any adjudication. It was only because of her inability to appear before the court, for want of information regarding the hearing date, the suit was happened to be decreed ex parte. She thus contends that there is sufficient reason for condoning the delay of 324 days and also to set aside the ex parte decree. 5. The learned counsel appearing for the respondent on the other hand would contend that earlier, when the suit came up for hearing on 13.03.2012 before the Sub Court, Kattappana, the appellant failed to appear resulting in passing 4 ## F.A.O.No.59 of 2020 of an ex parte decree. At that time, the appellant had filed I.A.No.1046 of 2014 and 1047 of 2014 seeking to set aside that decree and condone the delay of 960 days. Despite the pendency of Execution Petition No.16 of 2013, the said I.As were allowed on payment of cost of Rs.10,000/- as per order dated 29.06.2015. It was thereafter the case was transferred to the Sub Court, Devikulam, where it was filed as O.S.No.46 of 2017. 6. After service of notice in OS No.46 of 2017 on the appellant, there was no sitting in the Sub Court, Devikulam for want of appointment of a Presiding Officer there. It was after so many postings, the matter was taken up on 05.12.2015 and as the appellant did not appear, an ex parte decree was passed on 12.12.2018. It is contended by the learned counsel for the respondent that despite obtaining enough time, the appellant did not care to appear before the court below and therefore the court rightly had dismissed the I.As. 7. The learned counsel appearing for the appellant further would contend that although there were a few postings before the Sub Court, Devikulam, the matter was not being 5 ## F.A.O.No.59 of 2020 taken up continuously. So the appellant was not able to appear before the court when the matter was taken up all of a sudden and her lawyer did not take enough care to represent her before the court as well. The learned counsel contended that considering the serious dispute involved in the suit and as no negligence can be attributed to the appellant, a lenient view in the matter of condonation of delay and setting aside the ex parte decree is warranted. 8. It is well settled that the Law of Limitation is founded on public policy to ensure that the parties to 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, 6 F.A.O.No.59 of 2020 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 lifepurpose for the existence of the institution of Courts. 10. 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 concept 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 7 F.A.O.No.59 of 2020 apart, the first one warrants a 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 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 8 ## F.A.O.No.59 of 2020 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. 9 ## F.A.O.No.59 of 2020 21.12 The entire gamut of facts is 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. 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 concept 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 a strict approach, whereas, a delay of a short duration or few days, which may not attract the doctrine of prejudice, calls for a liberal delineation. 12. In this case, the period of delay is 324 days. It cannot be said that the delay is of short duration, though not 10 ## F.A.O.No.59 of 2020 inordinate. The reason stated by the appellant is that she did not get due intimation from her lawyer for appearing before the court. The learned counsel for the respondent pointed out that the appellant herself is a lawyer and by blaming her lawyer appearing in the suit she cannot save the situation. ## 13. In **G.P.Srivastava v. R.K.Raizada and others** ## **[(2000) 3 SCC 54]** the Apex court held, “7. Under Order IX Rule 13 of the Code of Civil Procedure, an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any "sufficient cause" from appearing when the suit was called on for hearing. Unless "sufficient cause" is shown for non-appearance of the defendant in the case on the date of hearing, the court has no power to set aside an ex parte decree. The words "was prevented by any sufficient cause from appearing" 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 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in 11 F.A.O.No.59 of 2020 deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The "sufficient cause" for non appearance refers 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 were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the 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.” (emphasis supplied) 14. 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 12 ## F.A.O.No.59 of 2020 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. 15. Considering the facts and circumstance of the case in the light of the law laid down by the Apex Court and this Court as to what shall be the sufficient cause for condoning the delay and also to set aside an ex parte decree, it is not able to say that the reason stated by the appellant is wholly sufficient. However, we are of the view that a lenient approach in the matter is required since serious disputes were seen raised by the appellant in the suit. Taking all such matters into account and also by following the principle followed by the Apex Court in **Robin Thapa v. Rohit Dora [(2019) 7 SCC 359]** this appeal can be allowed on imposing conditions. 13 ## F.A.O.No.59 of 2020 Therefore this appeal is allowed on the conditions that the appellant shall pay a cost of Rs.10,000/- to the respondent and also deposit in the court below 25% of the principal sum claimed by the respondent in the suit, within a period of one month from today. On such payment and deposit, I.A.Nos.326 of 2019 and 327 of 2019 will stand allowed and the Sub Court, Devikulam will proceed with the suit in accordance with law. In the event of restoring the suit on file, the court below will finally dispose of the suit within a period of six months from the date of restoration. **Sd/-** **ANIL K.NARENDRAN JUDGE** **Sd/-** **P.G. AJITHKUMAR JUDGE** PV