SABU N.A. v. TOM

## **`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 12[TH] DAY OF JUNE 2023 / 22ND JYAISHTA, 1945 ``` ``` F.A.O.NO.48OF 2014 ``` ``` UNDER ORDER XLIII, RULE 1(C) OF THE CODE OF CIVIL PROCEDURE AGAINST THE ORDER DATED 11.12.2013 IN ``` ``` I.A.NO.544 OF 2002 IN O.S.NO.652 OF 1993 ON THE FILE OF THE ADDITIONAL SUB COURT, NORTH PARAVUR ``` ## **`APPELLANT/PETITIONER/PLAINTIFF:`** ``` SABU N.A., AGED 40 YEARS, S/O ANJALOSE, NJARAKKACHALIL HOUSE, THOTTAKKATTUKARA, ALUVA PAKUTHY. ``` ``` BY ADV SRI.DINESH MATHEW J. MURICKEN ``` ## **`RESPONDENT/RESPONDENT/DEFENDANT:`** ``` TOM, S/O VARGHESE, AGED 48 YEARS, KOORAN VEETIL, THOTTAKKATTUKARA P.O., ALUVA PAKUTHY, ERNAKULAM DISTRICT, PIN - 683108 ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 12.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 F.A.O.No.48 of 2014 ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellant is the plaintiff in O.S.No.652 of 1993 on the file of the Additional Sub Court, North Paravur, which was one filed against the respondent herein-defendant claiming compensation of Rs.5,00,000/-. Going by the plaint averments, while the appellant was standing near Paravur Junction in Aluva along with his friends on 10.02.1992 at about 7.30. a.m., the defendant came in a motorcycle with a rifle pointing on Savad, but the bullet hit on the left leg of the appellant and he sustained injuries. 2. On 24.07.1996, the suit was decreed ex-parte for a sum of Rs.3,00,000/- with cost. The defendant filed I.A.No.3426 of 1996 to set aside that ex-parte decree, which was allowed on 06.12.1999. 3. On 06.10.2000, the suit was dismissed on the ground of non-prosecution. According to the appellant, since he was working in Saudi Arabia, he could not appear on 06.10.2000 and tender evidence. The appellant filed I.A.No.544 of 2002, invoking the provisions under Order IX, Rule 9 of the Code of Civil Procedure, 1908, to restore the suit and that application was supported by I.A.No.543 of 2002 to condone of delay of 15 months in filing the application for restoration. The reason stated in the application for condonation of delay was that the appellant was working in Saudi Arabia and hence he could not file an application to restore the suit 3 F.A.O.No.48 of 2014 immediately and I.A.Nos.544 of 2002 and 543 of 2022 were filed after coming back from Saudi Arabia. That application ended in dismissal by the order dated 11.12.2013 on the ground that the appellant has not chosen to enter the box and adduce evidence. The said order is under challenge in this appeal, invoking the provisions under Order XLIII, Rule 1(c) of the Code of Civil Procedure, 1908. 4. On 13.02.2014, when this appeal came up for admission, this Court issued notice to the respondent. 5. Heard the learned counsel for the appellant-plaintiff. Despite service of notice, none appears for the respondentdefendant. 6. 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 4 F.A.O.No.48 of 2014 prescribed period may be sufficient cause within the meaning of this Section. 7. 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 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. 8. 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. 9. In **Esha Bhattacharjee v. Raghunathpur Nafar** 5 F.A.O.No.48 of 2014 **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 strict approach whereas the second calls for a liberal delineation. 10. 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 with such an application in a routine manner. 6 F.A.O.No.48 of 2014 11. Order IX, Rule 8 of the Code of Civil Procedure deals with procedure where defendant only appears. As per Order IX, Rule 8, where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. 12. Order IX, Rule 9 of the Code provides that decree against plaintiff by default bars fresh suit. As per sub-rule (1) of Rule 9, where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient - cause for his non appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. As per sub-rule (2) of Rule 9, no order shall be made under this rule unless notice of the application has been served on the opposite party. 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, 7 F.A.O.No.48 of 2014 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 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 8 F.A.O.No.48 of 2014 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 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 malafide 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. 9 F.A.O.No.48 of 2014 ## 16. In **M. Shivananda v. M. Susheela and others [2021** **(5) KHC 357]** a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party held that, Order IX, Rule 9 of the Code of Civil Procedure enables the court to set the dismissal aside, if the plaintiff satisfies the court that there was sufficient - cause for his non appearance when the suit was called on for hearing. On the other hand, Order IX, Rule 13 of the Code enables the court which passed a decree _ex parte_ to set it aside, if the defendant 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. Therefore, the principle laid down by the Apex Court in **G.P. Srivastava [(2000) 3 SCC 54]** , in the context of an application filed under Order IX, Rule 13 of the Code, apply with equal force in the consideration of an application filed under Order IX, Rule 9 of the Code. ## 17. 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 in which one among us [Anil K. Narendran, J] was a party 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 10 F.A.O.No.48 of 2014 absence was not malafide 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. 18. A reading of paragraph 6 of the impugned order dated 11.12.2013 would show that in the affidavit filed in support of the application invoking the provisions under Section 5 of the Limitation Act, the appellant has stated that he could not appear before the Court on 06.10.2010, since he was abroad. However, the submission made by the learned counsel, who represented the plaintiff before the Sub Court, was that the plaintiff is not ready. The Court below noticed that on 06.10.2000, the counsel for the plaintiff did not inform the court that the plaintiff is working abroad and he could not get leave to attend the case. Further, no application seeking adjournment of the case or for removal of case from the list was also filed. Thereafter, the application for condonation of delay was filed after a period of 15 months. The plaintiff has also not chosen to adduce any evidence to show that he returned from Saudi Arabia only on 24.12.2001 and that, though he made efforts to avail leave from his place of employment, he could not get leave till 24.12.2001. 19. The stand taken in the objection filed by the respondent- 11 F.A.O.No.48 of 2014 defendant was that the counsel for the plaintiff was aware of the fact that the case is listed for trial on 06.10.2000 and therefore the averment that the plaintiff came to know about the dismissal only on 04.02.2002 is not true. Further, no explanation is offered for the delay in filing application under Order IX, Rule 9 of the Code. 20. Having considered the facts and circumstances of the case, in the light of the law laid down in the decisions referred to supra, we find that though the appellant has not chosen to substantiate the cause shown in the affidavit filed in support of the aforesaid interlocutory application for his absence on 06.10.2000 and also the delay in filing the application for restoration, by adducing proper evidence, both the interlocutory applications filed in O.S.No.652 of 1993 can be set aside imposing cost on the appellant-defendant. Accordingly, this appeal is allowed by setting aside the order dated 11.12.2012 in I.A.Nos.544 of 2002 and 543 of 2002 on payment of cost of Rs.5,000/- (Five thousand only) by the appellantdefendant to the respondent-plaintiff by depositing the same before the Additional Sub Court, North Paravur, 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.544 of 2002 will stand allowed, after condoning the delay of 15 months sought to be condoned in I.A.Nos.543 of 2002 and restoring O.S.No.149 of 2014 to file. 12 F.A.O.No.48 of 2014 Thereafter, the Sub Court shall proceed with O.S.No.652 of 1993 and finally dispose of the same within a period of four months. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** MIN