High Court of KeralaDivision BenchOriginal Petition allowed; condonation of delay...

Riju Puthukudy and Padmakumari Baby v. Daya Vipina, Riya, Raju Koloth and Velayudhan

Case / Petition Number:O.P.(FC) No.470 of 2022

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Anil K. Narendran
  • P. G. Ajithkumar Friday
Judgment Date
2022-09-30
Court Decision / Holding
OP (FC) 470/2022 allowed. I.A. Nos. 1 and 2 of 2022 in O.P. No. 151 of 2019 are allowed on payment of costs of Rs. 5,000 to the 1st respondent within three weeks. The Family Court, Malappuram, shall restore O.P. No. 151 of 2019 to file and dispose of it in accordance with law.
Final Disposition
Original Petition allowed; condonation of delay; ex parte decree set aside; costs awarded; matter to be restored to file for disposal in accordance with law.

Parties to the Case

Appellants / Petitioners

  • Riju Puthukudy
  • Padmakumari Baby

Respondents

  • Daya Vipina
  • Riya
  • Raju Koloth
  • Velayudhan

Legal Representation & Advocates

Counsels for Petitioners

  • • KRISHNA PRASAD. S
  • • SINDHU S KAMATH
  • • SWAPNA S.K.
  • • ROHINI NAIR
  • • SURAJ KUMAR D.

Counsels for Respondents

  • • Shiraz Abdulla
  • • M.S K.ABDUL NASSAR

Case Synopsis & Summary

This is an Original Petition (Family Court) No. 470 of 2022 filed under Article 227 of the Constitution challenging the Family Court, Malappuram’s order dated 11 February 2022, which dismissed I.A. Nos. 1 and 2 of O.P. No. 151 of 2019. The underlying O.P. No. 151 of 2019, instituted by the first respondent (wife) and others against the petitioners (husband and mother) sought return of gold ornaments and maintenance arrears; the O.P. was decreed ex parte on 08 December 2021 because the petitioners failed to appear. The petitioners contend that the first petitioner was not in station on the date due to being held up in New Delhi by COVID-19 restrictions, supported by medical certificates, and argue that a short delay of 12 days in filing I.A. Nos. 1 and 2 should be condoned. The Family Court refused, relying on the principle that nonappearance by the petitioner limited the ability to proceed, and did not apply liberal delay principles. The High Court, invoking Katiji, Esha Bhattacharjee and Rafeek, held that the expression “sufficient cause” is elastic, and a short delay warrants liberal consideration if reasonable and just, balancing prejudice. Consequently, the delay is condoned, the ex parte decree set aside on payment of costs, and the matter restored for disposal in accordance with law. The judgment endorses a measured liberal approach to condonation of delay, in line with established principles of ends of justice.

Provisions of Law Cited

Limitation Act, 1963 - Section 5Constitution of India - Article 227

Legal Doctrines & Maxims

  • Sufficient cause
  • Liberal approach to condonation of delay
  • Doctrine of prejudice
  • Ends of justice

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submit that the 1st petitioner could not attend the O.P. No.151/2019 trial on 06.12.2021 because he was detained in transit via Delhi owing to COVID-19 restrictions. A medical certificate and Ext.R1 details establish the constraint. They argue that delay of 12 days in filing I.A. Nos. 1 and 2 of 2022 was not intentional but resulted from the unavoidable circumstance and that a liberal, yet reasonable, approach to condonation should apply, as enshrined in Collector, Land Acquisition v. Katiji and later enunciations in Esha Bhattacharjee v. Raghunathpur Nafar Academy and Rafeek v. K. Kamarudeen. They seek setting aside of the ex parte decree and order restoration of OP No. 151/2019 to enable proper adjudication, with costs to compensate the respondent for inconvenience.

Contentions of Respondents

Respondents contend that the Family Court’s refusal to condone the delay was justified; the 12-day delay in filing the applications is short but enough to attract prejudice in the ongoing proceedings. They emphasize that nonappearance by the petitioners on the trial date cannot automatically entitle a liberal delay; the co-respondents attended and participated in the proceedings, and the petitioner should have coordinated with counsel and appeared. They rely on procedural precedents that require a reasonable, but not unfettered, exercise of discretion under Section 5 of the Limitation Act and emphasize that the ex parte decree was properly issued and should not be annulled without substantial justification or prejudice to the respondent.

Cited Precedents (3)

Case NameCitationTreatmentExplanation
Collector, Land Acquisition v. Katiji(1987) 2 SCC 107PositiveCited to support a liberal interpretation of 'sufficient cause' and to endorse a flexible approach to condonation of delay in the ends of justice.
Esha Bhattacharjee v. Raghunathpur Nafar Academy(2013) 12 SCC 649PositiveCited for principles on liberal delay, with emphasis on reasonableness and distinction between inordinate delay and short delay.
Rafeek and another v. K. Kamarudeen and another2021 (4) KHC 34PositiveDivision Bench precedent reinforcing liberal approach to delay while considering prejudice; supports court’s decision in this matter.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **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 30[TH] DAY OF SEPTEMBER 2022 / 8TH ASWINA, 1944 OP (FC) NO. 470 OF 2022 AGAINST THE ORDER DATED 11.02.2022 IN I.A.NOS.1 AND 2 OF 2022 IN O.P.NO.151 OF 2019 OF THE FAMILY COURT, MALAPPURAM** |**PETITIONERS:**|**PETITIONERS:**| |---|---| |**1**|**RIJU PUTHUKUDY,**| ||**AGED 32 YEARS, S/O VELAYUDHAN,**| ||**CHIRAKUNNATHU HOUSE, UGRAPURAM P.O.,**| ||**AREKODE AMSOM, MUNDAMBRA DESOM, ERNAD TALUK,**| ||**MALAPPURAM DISTRICT, PIN – 673639.**| |**2**|**PADMAKUMARI BABY**| ||**AGED 59 YEARS, W/O VELAYUDHAN,**| ||**CHIRAKUNNATHU HOUSE, UGRAPURAM P.O.,**| ||**AREKODE AMSOM, MUNDAMBRA DESOM, ERNAD TALUK,**| ||**MALAPPURAM DISTRICT, PIN – 673639, REPRESENTED BY**| ||**THE POWER OF ATTORNEY HOLDER RIJU PUTHUKUDY,**| ||**AGED 32 YEARS, S/O VELAYUDHAN,**| ||**CHIRAKUNNATHU HOUSE, UGRAPURAM P.O.,**| ||**AREKODE AMSOM, MUNDAMBRA DESOM, ERNAD TALUK,**| ||**MALAPPURAM DISTRICT, PIN – 673639.**| ||**BY ADVS.**| ||**KRISHNA PRASAD. S**| ||**SINDHU S KAMATH**| ||**SWAPNA S.K.**| ||**ROHINI NAIR**| ||**SURAJ KUMAR D.**| 2 O.P.(FC) No.470 of 2022 ## **RESPONDENTS:** - **1 DAYA VIPINA AGED 29 YEARS, S/O VELAYUDHAN, MARAMPARAMBIL HOUSE, MUTHUVALLUR P.O., KONDOTTY AMSOM, MUTHUVALLUR DESOM, KONDOTTY TALUK, MALAPPURAM DISTRICT, PIN – 673638.** **2 RIYA, AGED 34 YEARS, D/O VELAYUDHAN, CHIRAKUNNATHU HOUSE, UGRAPURAM P.O., AREKODE AMSOM, MUNDAMBRA DESOM, ERNAD TALUK, MALAPPURAM DISTRICT, PIN – 673639.** **3 RAJU KOLOTH AGED 52 YEARS, S/O RAMAN, ADAMBATT HOUSE, VILAYIL P.O., KUZHIMANA VIA, MALAPPURAM DISTRICT, PIN – 673645.** - **4 VELAYUDHAN, AGED 60 YEARS, S/O CHOZHI,** **CHIRAKUNNATHU HOUSE, UGRAPURAM P.O. AREEKODE AMSOM, MUDAMBRA DESOM, ERNAD TALUK, MALAPPURAM DISTRICT, PIN – 673639.** **BY ADVS. Shiraz Abdulla M.S K.ABDUL NASSAR** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 30.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.470 of 2022 ## **JUDGMENT** ## Ajithkumar, J. O.P.No.151 of 2019 was filed before the Family Court, Malappuram by the 1[st] respondent herein seeking return of gold ornaments and money. The 1[st] petitioner is the husband and the 1[st] respondent is the wife. The 2[nd] petitioner is the mother and respondents 2 to 4 are sister, father and uncle respectively of the 1[st] petitioner. The original petition was decreed exparte on 08.12.2021. The 1[st] petitioner was not available in station, having been held up in New Delhi due to COVID-19 related restrictions. On his coming back, he along with the 2[nd] petitioner filed I.A.No.2 of 2022 seeking to set aside the said decree and I.A.No.1 of 2022 to condone the delay of 12 days in filing the former application. The Family Court, Malappuram, dismissed both the applications as per the impugned order dated 11.02.2022. The said order is under challenge in this Original Petition filed under Article 227 of the Constitution of India. 4 O.P.(FC) No.470 of 2022 2. On 22.08.2022, this Original Petition was admitted to file and notice was directed to be served on the respondents. 3. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the 1[st] respondent. 4. O.P.No.151 of 2019 came up for trial before the Family Court, Malappuram, on 03.12.2021. Since both sides were not ready on that day, the matter was adjourned to 06.12.2021. On that day, the petitioners did not turn up and their counsel reported no instruction, which resulted in setting them exparte and allowing the Original Petition in favour of the 1[st] respondent. As per the said exparte decree, the petitioners herein were directed to return 25 sovereigns of gold ornaments and the 1[st] petitioner to pay Rs.94,000/towards arrears of maintenance. 5. The case of the petitioners herein is that they were not able to attend the court since the 1[st] petitioner was not available in station on that day. The Family Court did not 5 ## O.P.(FC) No.470 of 2022 believe the said version of the petitioners. The Family Court took the view that even if the 1[st] petitioner could not appear before the court; there was no difficulty for his corespondents in the original petition to appear before the Family Court and participate in trial. For those reasons the Family Court found that there was no reason to condone the delay. 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, 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 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 6 ## O.P.(FC) No.470 of 2022 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. 8. In **Rafeek and another v. K. Kamarudeen and another [2021 (4) KHC 34]** a Division Bench of this Court 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 7 ## O.P.(FC) No.470 of 2022 or few days, which may not attract doctrine of prejudice, calls for a liberal delineation. 9. Ext.R1(a) is a copy of the application filed on behalf of the 1[st] petitioner before the Family Court for postponing the trial of O.P.No.151 of 2019 and connected cases. Along with Ext.R1(a), a medical certificate was produced, wherein the 1[st] petitioner was advised rest for seven days from 02.12.2021. The application was accepted and the case was postponed to 06.12.2021. But on 06.12.2021 itself the case was decreed exparte. Along with the said reason, the petitioners contended that since the 1[st] petitioner was held up in Delhi during the relevant time, he could come before the court to participate in trial or to file the petition for setting aside the exparte decree in time. Of course, the 1[st] respondent filed Ext.R1(c) objection controverting the contentions regarding the reason for nonappearance and delay. As pointed out above, from Ext.R1(b) it is seen that the 1[st] petitioner was advised rest for seven days from 02.12.2021. If so, it was inappropriate to take up the matter for trial on 06.12.2021. 8 O.P.(FC) No.470 of 2022 10. Taking into account all such aspects and the delay was for 12 days only, we are of the view that a lenient view in the matter is required to be taken in the light of the principles laid down in the aforesaid decisions. The delay is therefore liable to be condoned and the exparte decree is liable to be set aside on payment of costs for compensating the inconvenience caused to the 1[st] respondent. Hence, this Original Petition is allowed. I.A.Nos. 1 and 2 of 2022 in O.P.No.151 of 2019 are allowed on payment of a cost of Rs.5,000/- (Rupees five thousand only) to the 1[st] respondent herein. The costs shall be paid within a period of three weeks. On such payment the Family Court, Malappuram, shall restore O.P.No.151 of 2019 to file and dispose of it in accordance with law. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 9 O.P.(FC) No.470 of 2022 ## **APPENDIX OF OP (FC) 470/2022** ## **PETITIONER EXHIBITS** **EXHIBIT-P1 A TRUE COPY OF THE PETITION BEARING NUMBER O.P.NO.22 OF 2019 FOR JUDICIAL SEPARATION FILED BY THE 1ST PETITIONER DATED 01-012019** - **EXHIBIT-P2 A TRUE COPY OF THE PETITION BEARING NUMBER O.P.NO.151/2019 DATED 23-02-2019 FILED BEFORE THE FAMILY COURT, MALAPPURAM** - **EXHIBIT-P3 A TRUE COPY OF THE ATTACHMENT INTIMATION IN I.A.NO. 256 OF 2019 IN O.P. NO. 151 OF 2019 DATED 28-03-2019** **EXHIBIT-P4 A TRUE COPY OF THE PETITION M.C. NO. 80 OF 2019 DATED 23-02-2019** - **EXHIBIT-P5 A TRUE COPY OF THE FIR DATED 06-03-2019 FILED AGAINST THE 1ST PETITIONER AND HIS FAMILY** - **EXHIBIT-P6 A TRUE COPY OF THE EXPARTE ORDER SHE OBTAINED IN M.C. NO. 30 OF 2019 DATED 2203-2019 BY THE JFCM, MALAPPURAM** - **EXHIBIT-P7 A TRUE COPY OF THE COUNTER FILED IN O.P.NO. 151 OF 2019 DATED 29-03-2021** - **EXHIBIT-P8 A TRUE COPY OF THE EX PARTE COMMON JUDGMENT IN O.P. NO.151 OF 2019 & M.C. NO.80 OF 2019 DATED 08-12-2021** - **EXHIBIT-P9 A TRUE COPY OF THE ORDER IN C.M.P. NO. 1/2022 IN M.C. NO. 80/2019 DATED 5-02-2022** - **EXHIBIT-P10 A TRUE COPY OF THE COMMON ORDER PASSED IN I.A. NO. 1 OF 2022 & I.A. NO. 2 OF 2022 IN O.P. NO. 151 OF 2019 DATED 11-02-2022** 10 O.P.(FC) No.470 of 2022 ## **RESPONDENT ANNEXURES** **ANNEXURE R1(A) A COPY OF THE AFFIDAVIT ALONG WITH DOCTOR'S CERTIFICATE AND PETITION** **ANNEXURE R1(B) A COPY OF THE MEMO FILED IN OP NO. 151/2019** **ANNEXURE R1(C) COUNTER FILED IN I.A.NO.1 OF 2022 IN O.P.NO.151 OF 2019**