Saju v. Raveendran and others

## **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 5[TH] DAY OF JUNE 2023 / 15TH JYAISHTA, 1945** **FAO NO. 159 OF 2015** **AGAINST THE ORDER PASSED BY THE SUB COURT, KOCHI IN I.A.NO.939 OF 2014 AND I.A.NO.940 OF 2014 IN O.S.NO.46 OF 2009 DATED 23.01.2015** **APPELLANT / PETITIONER IN I.A.NO.939 / 2014 AND I.A.NO.940 / 2014 / DEFENDANT NO.4:** **SAJU AGED 47 YEARS S/O.BAHULAYAN, MARAKKAPARAMBIL HOUSE, EDAVANAKKAD - 682 507. KOCHI TALUK.** **BY ADV. SRI.YASH THOMAS MANNULLY** **RESPONDENTS / RESPONDENT AND ADDL.RESPONDENT NOS.2 TO 7 IN I.A.NO.939/2014 AND I.A.NO.940/2014 / PLAINTIFF AND DEFENDANT NOS.1 TO 3 & 5 TO 7:** - **1 RAVEENDRAN S/O.GOPALAN, ANJALASSERY HOUSE, ELAMKUNNAPUZHA, KOCHI TALUK. PIN - 682 503.** **2 SUGHU AGED 65 YEARS S/O.AYYAPPAN, SHANGARADI HOUSE, EDAVANAKKADU VILLAGE, KOCHI TALUK. PIN - 682 502.** - **3 MURUKAN AGED 42 YEARS S/O.PARAMESWARAN, PANDIKASLAKKAL, EDAVANAKKADU** 2 F.A.O No.159 of 2015 **VILLAGE, KOCHI TALUK. PIN - 682 502.** - **4 BABU** - **AGED 55 YEARS** **S/O.KESAVAN, THETTETHARA HOUSE, EDAVANAKKADUVILLAGE, KOCHI TALUK. PIN - 682 502.** - **5 SUDHI AGED 42 YEARS** - **S/O.PICHAPPAN, ANJITHIKKAL HOUSE, EDAVANAKKADUVILLAGE, KOCHI TALUK. PIN - 682 502.** - **6 UNNIKRISHNAN AGED 50 YEARS** **S/O.ASOKAN, PERUMPADAPPIL HOUSE, CHERAI MURI,PALLIPURAM VILLAGE, KOCHI TALUK. PIN -683 514.** - **7 SANTHOSH** - **AGED 47 YEARS** **S/O.GOPALAN, PUNNAKATUTHARA HOUSE, EDAVANAKKADU VILLAGE, KOCHI TALUK. PIN - 682 502.** **BY ADVS.** **B.K.GOPALAKRISHNAN - R1** **SRI.SAJAN MANNALI - R3 SMT.V.N.SHASHIKALA - R3 SRI.AADITHYAN S.MANNALI - R3** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 05.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 F.A.O No.159 of 2015 ## **J U D G M E N T** ## P.G.Ajithkumar, J. The 4[th] respondent in O.S.No.46 of 2009 on the file of the Sub Court, Kochi is the appellant. He has filed I.A. Nos.939 of 2014 and 940 of 2014 for setting aside the ex parte decree in O.S. No.46 of 2009 and to condone the delay of 83 days. The Sub Court dismissed the applications. Challenging the said common order dated 23.01.2015, this appeal has been filed under Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908. 2. There is a delay of 69 days in filing this appeal. As per the order dated 31.05.2023 in C.M.Appln.No.412 of 2015, delay was condoned. 3. Heard the learned counsel appearing for the appellant and also the learned Counsel appearing for the 1[st] respondent-plaintiff. 4. The appellant would contend that his counsel expired when this matter was listed for trial and therefore he did not get information regarding the date of hearing of the 4 F.A.O No.159 of 2015 case. That had resulted in his nonappearance before the court on 03.03.2014 and declaring him ex parte. As its sequel the Sub Court passed an exparte decree on 27.03.2014. It is his contention that on 27.05.2014, a process server from the court reached his family house for affixing notice regarding attachment of his property and in the ensued enquiry only he came to know about passing of the ex parte decree. Thus he contends that there was sufficient reason for his non appearance before the court and for condonation of delay. 5. The learned counsel appearing for the 1[st] respondent would submit that contentions of the appellant lacked bonafides and he was set ex parte not for the first time. Earlier occasions; not once, ex parte decree was passed in the suit. But each time on his application, the decree was set aside after condoning the delay and therefore the intention of the appellant is obvious that he wanted to protract the proceedings. Accordingly the learned counsel would submit that the Sub Court, Kochi rightly had dismissed I.A.Nos.939 of 2014 and 940 of 2014. 5 F.A.O No.159 of 2015 6. Another aspect pointed out by the learned counsel appearing for the 1[st] respondent is that the 2[nd] defendant filed applications for condoning delay and setting aside the decree as I.A.Nos.377 of 2016 and 378 of 2016 which were allowed by the Sub Court. That order was challenged before this Court in O.P.(C) No.1463 of 2017 and this Court in modification of the order of the court below had directed the 2[nd] defendant to furnish security for the entire decree debt and also to pay cost of Rs.5,000/-. The 2[nd] defendant did not comply with the said directions even within the extended period granted by this Court. Since the appellant also was a party to the said proceedings, his plea in this appeal to set aside the ex parte decree dated 27.03.2014 cannot be entertained. 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- 6 F.A.O No.159 of 2015 purpose for the existence of the institution of Courts. 8. 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 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. 7 F.A.O No.159 of 2015 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 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 8 F.A.O No.159 of 2015 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 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.” [underlines supplied] ## 9. In **Rafeek and another v. K. Kamarudeen and** **another [2021 (4) KHC 34]** a Division Bench of this Court 9 F.A.O No.159 of 2015 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. 10. The fact that the 2[nd] defendant filed another application for setting aside the decree and the same happened to be dismissed for want of compliance of the conditions imposed for setting aside the decree cannot stand in the way of the appellant seeking an order setting aside that decree. The appellant seeks to set aside the decree as against him and not against others. The decree in question is one for 10 F.A.O No.159 of 2015 realisation of money. It being a joint and several decree, the plea of the appellant to set aside the decree against him will lie independently. 11. There is a delay of only 83 days. Therefore a lenient delineation is required. It is a fact that on earlier two occasions also ex parte decree was set aside in the same suit. But when the reasons stated for the delay and non appearance of the appellant before the court on 27.03.2014 appeared genuine, the earlier instances of decreeing the suit ex parte and setting those decrees aside cannot be a reason to deny the remedy. Reason stated by the appellant is that his counsel expired and that resulted in lack of communication. The fact that the counsel of the appellant expired during pendency of the suit is not in dispute. In the light of the law laid down in the aforesaid decisions, a lenient view in the matter is required to be taken in this case. We are of the view that the decree dated 27.03.2014 as against the appellant is liable to be set aside after condoning the delay in filing the application, subject to 11 F.A.O No.159 of 2015 payment of costs to compensate the inconvenience caused to the 1[st] respondent. In the result, this appeal is allowed. On setting aside the impugned order dated 23.01.2015, I.A. No.939 of 2014 and I.A.No.940 of 2014 in O.S.No.46 of 2009 are allowed. The decree dated 27.03.2014 against the appellant (defendant no.4) alone is set aside on payment of a cost of Rs.5000/-. The cost shall be paid to the 1[st] respondent-plaintiff within two weeks. On payment of the cost, the Sub Court, Kochi will restore O.S. No.46 of 2009 on file and proceed it as against the appellant (defendant no.4) in accordance with law. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** PV