Santakumari, Sunil and Indira v Priya and others (Mat.Appeal No.983 of 2015)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 15[TH] DAY OF FEBRUARY 2023 / 26TH MAGHA, 1944 MAT.APPEAL NO. 983 OF 2015** **AGAINST THE ORDER DATED 20.06.2015 IN I.A.NOS.4937 AND 4936 OF 2014 IN O.P.NO.173 OF 2008 ON THE FILES OF THE FAMILY COURT,THRISSUR** ## **APPELLANTS:** - **1 SANTHAKUMARI AGED 65 YEARS, W/O SIVADASAN. C, THYPARAMBATH HOUSE, PERINGOTTUKKARA PO, THRISSUR.** - **2 SUNIL** - **S/O SIVADASAN. C, THYPARAMBATH HOUSE, PERINGOTTUKKARA PO , THRISSUR.** - **3 INDIRA,** - **W/O BALAKRISHNAN, KOOTTALA HOUSE, ANTHIKKAD PO, THRISSUR.** **BY ADV SRI.DILIP J. AKKARA** ## **RESPONDENTS:** - **1 PRIYA D/O RAMAKRISHNAN, KUNNATH HOUSE, THANNYAM VILLAGE, DESOM, THRISSUR.** - **2 MINOR ADITHYAN,** - **S/O BHARATHARAJ, KUNNATH HOUSE, THANNYAM VILLAGE,DESOM, THRISSUR.** 2 Mat.Appeal No.983 of 2015 - **3 MINOR ANAMIKA, D/O BHARATHARAJ, KUNNATH HOUSE, THANNYAM VILLAGE,DESOM, THRISSUR.** - **4 BHARATHARAJ,** - **S/O SIVADASAN C. THYAPARAMBATH HOUSE,THANNYAM VILLAGE, DESOM THRISSUR. (DELETED)*** - ***THE NAME OF FOURTH RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS/PETITIONERS AS PER ORDER DATED 09.08.2019 IN IA 1/2019 IN MAT.APPEAL 983/15.** **BY ADVS.** **SRI.C.HARIKUMAR SRI.RENJITH RAJAPPAN** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 08.02.2023, THE COURT ON 15.02.2023 DELIVERED THE FOLLOWING:** 3 Mat.Appeal No.983 of 2015 ## **JUDGMENT** ## P.G. Ajithkumar, J. The appellants are respondent Nos.2 to 4 in O.P.No.173 of 2008 on the files of the Family Court, Thrissur. An exparte decree was passed in O.P.No.173 of 2008 on 23.01.2010. The appellants filed I.A.Nos.4937 of 2014 and 4936 of 2014 seeking to condone the delay of 1729 days and to set aside the exparte decree. The Family Court as per the order dated 20.06.2015 dismissed those applications. Aggrieved thereof, the appellants preferred this appeal under Section 19(1) of the Family Courts Act, 1984. 2. Respondent Nos.1 to 3, who are the petitioners in O.P.No.173 of 2008 entered appearance through their learned counsel. As per the order dated 09.08.2019 in I.A.No.1 of 2019 the 4[th] respondent was deleted from the party arrray at the risk of the appellants. 3. Heard the learned counsel appearing for the appellants and the learned counsel appearing for respondents 1 to 3. 4 Mat.Appeal No.983 of 2015 4. O.P.No.173 of 2008 was filed by respondents 1 to 3. Respondent No.1 is the wife of respondent No.4. Respondent Nos.2 and 3 are their children. The original petition was filed seeking return of 50 sovereigns of gold ornaments and household articles, compensation of Rs.3 lakhs and maintenance. The appellants are mother-in-law, brotherin-law and sister-in-law of the 1[st] respondent. The appellants and the 4[th] respondent received notice and entered appearance in O.P.No.173 of 2008. A counselling session taken place, which did not fructify. Although several adjournments were availed, the appellants and the 4[th] respondent did not file their objection. Accordingly, they were set exparte and a decree was passed on 23.01.2010. 5. The appellants would contend that the 4[th] respondent was entrusted to defend the case, but he did not take necessary actions in that regard. The 1[st] appellant is an aged ailing woman. The 2[nd] appellant was abroad and the 3[rd] appellant having married away, been residing at a far away place. Therefore, the appellants could not attend the court proceedings in time and they did not enquire about the 5 ## Mat.Appeal No.983 of 2015 proceedings on the belief that the 4[th] respondent was taking necessary steps to defend the case in a proper manner. It is the case of the appellants that only when they received notice in the execution proceedings, they came to know that a decree was passed and immediately they filed the present interlocutory application. 6. There is a delay of 1729 days in filing the petition for setting aside the exparte decree. This is not a case where the appellants did not receive notice. They received notice and entered appearance. Subsequently, they failed to participate in the proceedings, resulting in declaring them exparte. The appellants did not adduce any evidence in order to substantiate their contentions. When there is inordinate delay and pendency of the proceedings was well within the knowledge of the appellants, there cannot be an inference that their non-appearance was for sufficient reasons. The appellants ought to have adduced evidence before the court to substantiate the reasons for their non-appearance before the court and also the delay. 7. In **Collector, Land Acquisition v. Katiji [(1987)** **2 SCC 107]** , in the context of Section 5 of the Limitation Act, 6 Mat.Appeal No.983 of 2015 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. 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: 7 Mat.Appeal No.983 of 2015 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. 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 8 Mat.Appeal No.983 of 2015 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. 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 Mat.Appeal No.983 of 2015 9. 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 or few days, which may not attract doctrine of prejudice, calls for a liberal delineation. 10. The original petition was filed in the year 2008. Decree was passed on 23.01.2010. There occurred a long delay of 1729 days in filing the petition for setting aside the exparte decree. In the said circumstances, the appellants have the obligation to substantiate the reasons for the delay by placing sufficient materials before the court, since the 10 Mat.Appeal No.983 of 2015 principle of prejudice which insists on taking a strict approach, if there is long delay, applies in this case. But the appellants did not place on record any evidence or material to explain the delay. Applying the principles laid down in the aforesaid decisions, we are of the view that the appellants failed to discharge their burden. In the event of setting aside the decree, after such a long period, that will cause serious prejudice to respondents 1 to 3, who are the wife and children of the 4[th] respondent. In such circumstances, we are of the view that the order dated 20.06.2015 dismissing I.A.Nos.4937 and 4936 of 2014 in O.P.No.173 of 2008 does not suffer from any infirmity and not liable to be interfered with. The appeal therefore fails and the same is dismissed. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr