Sapna P.P. v. Hareesh Kumar A

## **`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 2[ND] DAY OF NOVEMBER 2022 / 11TH ``` ``` KARTHIKA, 1944 ``` ``` MAT.APPEAL NO.313 OF 2022 ``` ``` AGAINST THE ORDER IN I.A.NO.1 OF 2021 IN O.P.NO.1203 OF 2019 ON THE FILES OF THE FAMILY COURT, KOZHIKODE DATED 25.03.2022 ``` ## **`APPELLANT:`** ``` SAPNA P.P., AGED 47 YEARS, D/O.LATE PADMANABHAN NAIR, JAPA MYTHRI NAGAR, NEAR SANGEETHA THEATRE, PERINTHALMANNA, MALAPPURAM DISTRICT, PIN - 679 322 ``` ``` BY ADVS. B.PREMNATH (E) SARATH M.S. ``` ## **`RESPONDENT:`** ``` HAREESH KUMAR.A, AGED 53 YEARS, S/O. T. RAJAGOPALAN NAIR, NIMEELITHAM, ERANHIKKAL P.O., ELATHUR AMSOM, KARANNUR DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT (ELATHUR PSL) (KOZHIKKODE MUNSIFF COURT-1 LIMIT), PIN - 673 303 ``` ``` BY ADVS. V.V.SURENDRAN P.A.HARISH ``` ``` THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 02.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Mat. Appeal No.313 of 2022 ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellant is the respondent in O.P.No.1203 of 2019, which is one filed by the respondent herein-husband, seeking dissolution of the marriage under Section 13(1)(a) and (1)(b) of the Hindu Marriage Act, 1955. On 27.01.2021, the Family Court passed an exparte decree dissolving the marriage solemnised between the appellant and the respondent. On 24.02.2021, the appellant filed I.A.No.1 of 2021, seeking an order to set aside exparte decree in O.P.No.1203 of 2019. In that interlocutory application, the respondent-husband filed counter on 17.12.2021. After considering the rival contentions, the Family Court, by the order dated 25.03.2022, dismissed I.A.No.1 of 2021 in O.P.No.1203 of 2019. Paragraph 6 of the said order read thus; “Petitioner is an Advocate. The death of the father was on 08.09.2019 and death of the mother was on 20.08.2020. Exparte decree pronounced only on 21.01.2021. No documents has been produced by the petitioner to prove that she was suffering from chronic kidney disease and was undergoing treatment for the same. There is no dispute to the fact that petitioner herein was prosecuting O.P.Nos.1292 of 2019, 1249 of 3 Mat. Appeal No.313 of 2022 2019 and M.C.No.401 of 2019. The facts being so the reason for not prosecuting O.P.No.1203 of 2019 is not at all believable. According to me there is no sufficient reason to set aside the exparte decree. Hence, I am not inclined to allow the petition.” Feeling aggrieved, the appellant is before this Court in this appeal, invoking the provisions under Section 19(1) of the Family Courts Act, 1984. 2. On 19.04.2022, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondent by speed post. In I.A.No.1 of 2022, this Court granted an interim stay of operation of exparte decree in O.P.No.1203 of 2019 on the files of the Family Court, Kozhikode for two months. The said interim order was extended on 23.06.2022, which is still in force. 3. On 06.07.2022, when this appeal came up for consideration, both parties were directed to appear before the District Mediation Centre, Kozhikode on 16.07.2022. The matter could not be settled in mediation, as per the report dated 02.08.2022 of the Mediator. 4. Heard the learned counsel for the appellant and also the learned counsel for the respondent. 4 Mat. Appeal No.313 of 2022 5. The learned counsel for the appellant would contend that sufficient cause has been shown in the affidavit filed in support of I.A.No.1 of 2021, which is one filed under Order IX Rule 13 of the Code of Civil Procedure, for setting aside the exparte decree. Without properly adverting to the contentions raised by the appellant, the Court below dismissed that interlocutory application, which was one filed within the period of limitation. 6. Per contra, the learned counsel for the respondent would contend that though I.A.No.1 of 2021 is one filed within the period of limitation, during the period referred to in the affidavit filed in support of the said I.A., the appellant was prosecuting O.P.No.1292 of 2019, 1249 of 2019, M.C.No.401 of 2019 and also another proceedings under the Domestic Violence Act. Therefore, the Family Court cannot be found fault in rejecting that interlocutory application. The learned counsel would also point out that the appellant herself has filed another original petition i.e., O.P.No.1292 of 2019, before the Family Court, Kozhikode, seeking a decree of divorce on the same ground. 7. On a query made by this Court, the learned counsel 5 Mat. Appeal No.313 of 2022 for the respondent would submit that, as stated in the affidavit filed in support of the interlocutory application, she lost her parents on 08.09.2019 and 20.08.2020. 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 lifepurpose for the existence of the institution of Courts. 9. **In Esha Bhattacharjee v. Raghunathpur Nafar 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 6 Mat. Appeal No.313 of 2022 ## second calls for a liberal delineation. ## 10. 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. 11. 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 7 Mat. Appeal No.313 of 2022 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. ## 12. 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 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 8 Mat. Appeal No.313 of 2022 ## be too onerous. 13. In **Robin Thapa v. Rohit Dora [(2019) 7 SCC 359]** , the Apex Court condoned the delay in filing application under Order IX Rule 13 of the Code of Civil Procedure, 1908, to set aside the ex-parte decree dated 09.10.2014 of Civil Judge, Senior Division, Dehradun. That application was filed on 02.10.2015, which was supported by an application for condonation of delay. The trial court condoned the delay and allowed the application to set aside the ex parte decree. That order was set aside by the High Court. On the facts of the case, the Apex Court noticed that the appellant came to be served with the notice of the execution proceedings through special messenger on 27.03.2015. Thus, the case of the appellant that he came to know about the passing of the decree only on 17.11.2015 cannot be acted upon. In the execution of the decree, sale deed has been executed in favour of the respondent and it is only thereafter that despite the receipt of the notice dated 27.03.2015, the appellant has set up the case that he came to know about the passing of decree only several months thereafter. Considering the fact that the matter arises from a suit for specific performance, 9 Mat. Appeal No.313 of 2022 which is undoubtedly a discretionary relief, and since the appellant was prepared to deposit the entire amount spent by the respondent for getting the sale deed executed, the Apex Court found that the interest of justice demands that subject to putting the appellant on terms, he should be given an opportunity to contest a case. Accordingly, the appeal was allowed and the impugned order was set aside subject to the conditions that the appellant will deposit a sum of Rs.67,400/towards stamp duty and registration charges paid by the respondent, within a period of one month from the date of judgment, in the execution court and a further deposit of Rs.50,000/- as cost to be paid to the respondent. A reading of the judgment of the Apex Court would make it explicitly clear that the Apex Court has taken a lenient view considering the fact that the suit is one for specific performance and also the extent of delay, etc. 14. In view of the law laid down in the decisions referred to supra, we fine no reason to sustain the reasoning of the Family Court in the impugned order dated 25.03.2022. In the result, this appeal is allowed by setting aside the order dated 25.03.2022 in I.A.No.1 of 2021, thereby allowing 10 Mat. Appeal No.313 of 2022 that interlocutory application, by setting aside the exparte decree dated 27.01.2021 in O.P.No.1203 of 2019, and that original petition is restored to file. The Family Court, Kozhikode, is directed to proceed with O.P.No.1203 of 2019 and finally disposed of the same, as expeditiously as possible, at any rate, within a period of three months from the date of production of a certified copy of this judgment. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** MIN