Saleem v. Sivadasan

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 2[ND] DAY OF AUGUST 2023 / 11TH SRAVANA, 1945 ``` ## `OP(C) NO. 1566 OF 2023` ``` AGAINST THE JUDGMENT DATED 28.09.2022 IN CMA 9/2021 OF SUB COURT, SULTHANBATHERY ``` ## `PETITIONER:` ``` SALEEM AGED 47 YEARS S/O. MUHAMMED, ARAKKAL HOUSE, PAMBRA P.O., CHUNDAKOLLY, IRULAM AMSOM DESOM, SULTHAN BATHERY,, PIN – 673592 ``` ``` BY ADVS.PREETHI. P.V. DEEPA NARAYANAN K.SUJAI SATHIAN M.V.BALAGOPAL GOURI MEEMPAT SANGEETHA SREEKUMAR T.SETHUMADHAVAN (SR.) MARY LIYA SABU ``` ``` RESPONDENT: ``` ``` SIVADASAN AGED 48 YEARS S/O. CHANDRANAN , MARUTHAKKODU VEEDU, PAMBRA P.O., CHUNDAKOLLY, IRULAM AMSOM DESOM, SULTHAN BATHERY,, PIN – 673592 ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(C)No.1566/2023 ``` ``` -:2:- ``` Dated this the 2[nd] day of August,2023 ## **J U D G M E N T** The original petition is filed challenging Ext P9 judgment passed by the Court of the Subordinate Judge, Sulthanbathery (lower Appellate Court), in C.M.A.No.9/2021. 2. The relevant factual matrix for the determination of the original petition are: - (i) The petitioner is the defendant in O.S.No.520/2014 on the files of the Munsiff Court, Sulthanbathery(Trial Court), which was filed by the respondent, for a decree for return of advance sale consideration. - (ii)The petitioner has not received any summons in the suit. Yet, an ex-parte decree was passed on 27.03.2015. - (iii)The petitioner became aware of the said decree only on 26.06.2019, when he approached the Police Station to file a complaint against the ``` O.P.(C)No.1566/2023 ``` ``` -:3:- ``` respondent. By then, the respondent had filed E.P.No.319/2015 before the Trial Court. - (iv) Immediately, the petitioner filed I.A.Nos.788 &789/2019 (Exts P2 & P3), to condone the delay of 1553 days and to set aside the ex-parte decree, respectively. The applications were opposed by the respondents through Exts P4 & P5 counter affidavits. - (v) The Trial Court, by Exts P6 & P7 orders, rejected Exts P2 & P3 applications. - (vi) Assailing Ext P6 order, the petitioner filed C.M.A.No.9/2021 before the lower Appellate Court. - (vii)The lower Appellate Court, by the impugned Ext P9 judgment, has dismissed the appeal. - (viii)Ext P9 judgment is patently erroneous and hyper-technical. Hence, the original petition. 3. Heard; Sri. T. Sethumadhavan, the learned ``` O.P.(C)No.1566/2023 ``` ``` -:4:- ``` Senior Counsel appearing for the petitioner on admission. 4. The question is whether there is any error in Ext P9 judgment? 5. It is the petitioner’s case that he was unaware of the pendency of the suit because he was not served with any summons by the Trial Court. It is only when he went to the Police Station, to lodge a complaint against the respondent on 26.09.2019, he became aware of the ex-parte decree passed against him. Immediately, he filed Exts P2 & P3 applications, to condone the delay of 1553 days and to set aside the ex-parte decree. The applications were opposed by the respondent through Exts P4 & P5 counter affidavits. 6. The Trial Court, after appreciating the rival pleadings in Exts P2 to P5, by Ext P6 order found that the process server had served summons in the suit on ``` O.P.(C)No.1566/2023 ``` ``` -:5:- ``` the wife of the petitioner on three occasions and obtained endorsements on the summons. Similarly, even in the execution petition summons was served on the petitioner’s wife. Accordingly, the Trial Court disbelieved the contention of the petitioner that he was unaware of the pendency of the suit. 7. Admittedly, the petitioner has not let in any evidence to disprove or discredit the endorsement of the process server or to controvert the materials on record. Thus, the Trial Court, arrived at a conclusion that the petitioner has not stated sufficient cause to condone the inordinate delay of 1553 days in filing Ext P2 application. Consequently, the Trial Court rejected Ext P2 application by Ext P6 order and consequentially, rejected Ext P3 application by Ext P7 order. 8. Even though the petitioner carried up the ``` O.P.(C)No.1566/2023 ``` ``` -:6:- ``` matter in appeal, the lower Appellate Court, after re-appreciating the pleadings and materials on record, and after referring to Order 5 Rules 15 to 19 of the Code of Civil Procedure, 1908, found that the summons in the suit was served on the petitioner’s wife, which was sufficient service and, accordingly, dismissed the appeal by confirming Ext P7 order passed by the Trial Court. 9. It is also important to point out that Ext P9 judgment was passed on 28.09.2022. It is nearly after a year that the petitioner has filed the present original petition. Although, the petitioner has a case that he had filed a revision petition before this Court, which was returned on 24.11.2022. Yet, the petitioner maintained stoic silence from the said date and filed the instant petition, after the respondent has filed a fresh Execution Petition on 13.06.2023. ``` O.P.(C)No.1566/2023 ``` ``` -:7:- ``` ## 10. A three Judge Bench of the Hon'ble Supreme Court in **University of Delhi v. Union of India and others** [2019 KHC 7261] has held thus: “20.xxxxxxxxxxxxxxxxxx Even in such case the condonation of long delay should not be automatic since the accrued right or the adverse consequence to the opposite party is also to be kept in perspective. **In that background while considering condonation of delay, the routine explanation would not be enough but it should be in the nature of indicating “sufficient cause” to justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the Courts based on the fact situation.** xxxxxxxxxx”. [emphasis supplied] ## 11. In **Pundlik Jalam Patil v. Jalgaon Medium Project, [(2008) 17 SCC 448],** the Hon'ble Supreme Court has observed as follows: “17. …..The evidence on record suggests neglect of its own right for long time in preferring appeals. **The court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The court helps those who are vigilant and 'do not slumber over their rights.”** “29. It needs no restatement at our hands that the object for fixing time limit for litigation is based on public policy fixing a life span for legal remedy for the purpose of ``` O.P.(C)No.1566/2023 ``` ``` -:8:- ``` general welfare. **They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy** .” [emphasis supplied] ## 12. in **Maniben Shah v.** Again **Devraj Municipal Corporation of Brihan Mumbai** [(2012) ## 5 SCC 157] the Hon'ble Supreme Court has held thus: **“24.** What colour the expression “sufficient cause” would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. **If on the other hand, the explanation given by the application is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay”** . [emphasis supplied] 13. The above position has been reiterated by the Hon'ble Supreme Court in **Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and Others** [(2013) 12 SCC 649] by holding ``` O.P.(C)No.1566/2023 ``` ``` -:9:- ``` ## that: 21.8 (viii) **There is a distinction between inordinate delay and a delay of short duration of 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 (ix) 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(x) **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.”** [emphasis supplied] 14. On an analysis of the above precedents, it would show that the law is succinctly laid down, that while considering an application for condonation of delay, a routine explanation is insufficient to indicate sufficient cause to justify the delay, and the same will depend on the back drop of each issue and will have to be weighed carefully by the Courts based on the fact ``` O.P.(C)No.1566/2023 ``` ``` -:10:- ``` situation. In the case of inordinate delay a strict approach is warranted because “delay defeats equity”. 15. The sheet-anchor of the petitioner in the case on hand is that he was not served with the summons by the Trial Court. 16. The Trial Court as well as the lower Appellate Court have concurrently found that the summons was duly served on the petitioner, not once, but thrice. This concurrent finding of fact cannot be dislodged by this Court in an original petition filed under Article 227 of the Constitution of India. 17. The right of the respondent has crystallised over the passage of nearly eight years. At this distance of time, I am inclined to dislodge the crystallised right of the respondent, especially after accepting the findings of the courts below that the petitioner is guilty for willful latches and negligence. ``` O.P.(C)No.1566/2023 ``` ``` -:11:- ``` 18. I do not find any error or illegality in Ext P9 judgment passed by the lower Appellate Court, confirming the order of the Trial Court, to interfere with the impugned judgment under Article 227 of the Constitution of India. The original petition is sans substance of merits and is hence, dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/02.08.23 //True copy// P.A.To Judge ``` O.P.(C)No.1566/2023 ``` ## `-:12:-` ## `APPENDIX` ``` PETITIONER EXHIBITS EXHIBIT P1A. TRUE COPY OF THE PLAINT IN OS NO:520/2014 MUNSIFF COURT, SULTHAN BATHERY DATED 28.10.2014 ``` |`EXHIBIT P2`|`A. TRUE COPY OF THE AFFIDAVIT AND THE`| |---|---| ||`APPLICATION APPENDED TO I.A. NO.788/2019 IN`| ||`O.S.NO.520/2014 MUNSIFF COURT, SULTHAN`| ||`BATHERY DATED 28.06.2019`| |`EXHIBIT P3`|`A. TRUE COPY OF THE AFFIDAVIT AND THE`| ||`APPLICATION APPENDED TO I.A. NO.789/2019 IN`| ||`O.S.NO.520/2014 MUNSIFF COURT, SULTHAN`| ||`BATHERY DATED 28.06.2019`| |`EXHIBIT P4`|`A. TRUE COPY OF THE COUNTER FILED IN`| ||`I.A.788/2019 IN O.S.NO.520/2014 MUNSIFF`| ||`COURT, SULTHAN BATHERY DATED 25.03.2021`| |`EXHIBIT P5`|`A. TRUE COPY OF THE COUNTER FILED IN`| ||`I.A.789/2019 IN O.S.NO.520/2014 MUNSIFF`| ||`COURT, SULTHAN BATHERY DATED 25.03.2021`| |`EXHIBIT P6`|`A. TRUE COPY OF THE ORDER IN`| ||`I.A.NO.788/2019 IN O.S.NO.520/2014 MUNSIFF`| ||`COURT, SULTHAN BATHERY DATED 31.08.2021`| |`EXHIBIT P7`|`A. TRUE COPY OF ORDER IN I.A.789/2019 IN`| ||`O.S.NO.520/2014 MUNSIFF COURT, SULTHAN`| ||`BATHERY DATED 31.08.2021`| |`EXHIBIT P8`|`A.TRUE COPY OF C.M.A NO.9/2021 SUB COURT,`| ||`SULTHAN BATHERY DATED 08.10.2021`| |`EXHIBIT 9`|`A. TRUE COPY OF THE JUDGMENT IN C.M.A`| ||`9/2021 IN O.S.NO.520/2014 SUBORDINATE`| ||`JUDGE, SULTHAN BATHERY DATED 28.09.2022`| |`EXHIBIT P10`|`A. TRUE COPY OF E.P.NO.81/2023 IN`| ||`O.S.NO.520/2014 MUNSIFF COURT, SULTHAN`| ||`BATHERY DATED 13.06.2023`| |`RESPONDENT’S`|`EXHIBITS: NIL`|