Saidu v. Ummar

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` TUESDAY, THE 6[TH] DAY OF JUNE 2023 / 16TH JYAISHTA, 1945 ``` ``` FAO NO. 18 OF 2023 ``` ``` AGAINST THE ORDER DATED 25.08.2022 IN R.P.I.A.NO.12 OF 2021 & I.A. NO.1 OF 2021 IN O.S.No.149 of 2014 OF THE COURT OF ``` ## **`THE SUB JUDGE, CHAVAKKAD`** ## **`APPELLANT/PETITIONER/DEFENDANT:`** ``` SAIDU, AGED 69 YEARS S/O.PALLIYALIL KUNJUMUHAMMED, KUMARANELLUR AMSOM, AMETTIKKARA DESOM, KUMARANELLUR P.O, OTTAPALAM TALUK, PALAKKAD DISTRICT., PIN - 679552 ``` ``` BY ADVS. JACOB SEBASTIAN K.V.WINSTON ANU JACOB DIVYA R. NAIR ``` ## **`RESPONDENT/RESPONDENT/PLAINTIFF:`** ``` UMMAR, AGED 67 YEARS S/O.KARUPPACHAMVALAPPIL AHAMMED MUSLIAR, POOKODE AMSOM, THOZHIYUR DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT., PIN - 680520 ``` ``` BY ADVS. SREEHARI R HAMZA A.V.(K/1588/2022) VIGNESH S.(K/3697/2022) ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 06.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` F.A.O.No.18 of 2023 ## **J U D G M E N T** ## Anil K.Narendran, J. The appellant is the defendant in O.S.No.149 of 2014 on the file of the Sub Court, Chavakkad, which was one filed by the respondent herein-plaintiff for realisation of an amount of Rs.15,36,500/- (Rupees Fifteen Lakhs Thirty Six Thousand Five Hundred only) together with interest and cost. In O.S.No.149 of 2014, the appellant entered appearance on 07.01.2015. He did not file written statement. He was set _ex parte_ on 16.07.2015 and the suit was decreed _ex parte_ on 29.07.2015. Thereafter, the exparte decree was set aside and the suit was listed on 04.03.2016. On that day, the appellant filed application to remove the case from the list. The same was allowed. Again the suit was listed on 21.03.2016 and on that day the case was referred for mediation. The matter could not be settled in mediation. Since the defendant did not appear, the suit was decreed _ex parte_ again on 18.11.2016. Subsequently, on 31.01.2017, the _ex parte_ decree was set aside and the case was listed to 06.02.2018. On that day, the defendant did not appear and the case was again decreed _ex parte_ . The _ex parte_ decree was set aside and the suit was re-listed on ``` 3 ``` F.A.O.No.18 of 2023 05.09.2019. On that day also the defendant did not appear and filed an application to remove the case from the list. The affidavit filed along with the application to remove the case from the list was one sworn to by the counsel for the defendant, wherein it is stated that she has been entrusted with Vakalath only recently and she needs time to study the case. The defendant was set _ex parte_ and an _ex parte_ decree was passed on 07.11.2019. The application to set aside the _ex parte_ decree, i.e., R.P.I.A.No.12 of 2021 was filed along with I.A.No.1 of 2021, an application to condone the delay of 473 days. The court below by the order dated 25.08.2022 dismissed I.A.No.1 of 2021 and also R.P.I.A.No.12 of 2021, on the ground that the intention of the appellant is only to protract the case and that no valid reason is shown for condoning the delay of 473 days in filing the application to set aside the _ex parte_ decree. 2. Feeling aggrieved, the appellant is before this Court in this appeal, invoking the provisions under Section 104 read with Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908. 3. This appeal is filed along with C.M. Application No.1 of 2023 to condone the delay of 65 days. By the order dated 14.03.2023, that C.M.Application was allowed and delay was ``` 4 ``` F.A.O.No.18 of 2023 condoned. Thereafter the parties were directed to appear before the Mediation Centre. However, the matter could not be settled in mediation. 4. Heard the learned counsel for the appellant-defendant and also the learned counsel for the respondent-plaintiff. 5. 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. 6. It is well settled that the Law of Limitation is founded ``` 5 ``` F.A.O.No.18 of 2023 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. 7. 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. 8. In **Esha Bhattacharjee v. Raghunathpur Nafar** ``` 6 ``` F.A.O.No.18 of 2023 **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. 9. 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 ``` 7 ``` F.A.O.No.18 of 2023 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. 10. 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 ``` 8 ``` F.A.O.No.18 of 2023 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. ## 11. 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. 12. In **G.P. Srivastava** , the Apex Court held further that, ``` 9 ``` F.A.O.No.18 of 2023 ‘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 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. ## 13. 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 ``` 10 ``` F.A.O.No.18 of 2023 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. ## 14. In **In Re:Cognizance for Extension of Limitation** **[(2022) 3 SCC 117]** 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 28.02.2022 shall stand excluded. Relying on the said decision, the learned counsel for the appellants would submit that, if the aforesaid period is excluded, the actual delay comes to 130 days, as against 473 days sought to be condoned by filing I.A.No.1 of 2021 in O.S.No.149 of 2014. 15. In the instant case, the appellant filed I.A.No.1 of 2021 in O.S.No.149 of 2014 seeking an order to condone the delay of 437 days in filing R.P.I.A.No.12 of 2021 to set aside the _ex parte_ decree dated 07.11.2019. After excluding the period from 15.03.2020 till the date of filing of those applications, in view of ``` 11 ``` F.A.O.No.18 of 2023 the direction contained in the order of the Apex Court in **In Re:Cognizance for Extension of Limitation [(2022) 3 SCC** **117]** , the actual extent of delay comes to 130 days. The defendant was set _ex parte_ on earlier occasions and those _ex parte_ decrees were set aside based on the applications made by the defendant. 16. 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 the extent of delay being 130 days as against the delay of 437 days, which was sought to be condoned by filing I.A.No.1 of 2021, both the interlocutory applications filed in O.S.No.149 of 2014 can be set aside imposing exemplary cost on the appellant-defendant. Accordingly, this appeal is allowed by setting aside the order dated 25.08.2022 in R.P.I.A.No.12 of 2021 and I.A.No.1 of 2021 on payment of cost of Rs.30,000/- (Thirty thousand only) by the appellant-defendant to the respondent-plaintiff by depositing the same before the Sub Court, Chavakkad, within a period of three weeks from the date of receipt of a certified copy of this judgment. On such deposit being made, R.P.I.A.No.12 of 2021 will stand allowed, after condoning the delay of 130 days sought to be ``` 12 ``` F.A.O.No.18 of 2023 condoned in I.A.No.1 of 2021 and restoring O.S.No.149 of 2014 to file. Thereafter, the Sub Court shall proceed with O.S.No.149 of 2014 and finally dispose of the same within a period of four months. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** PV