Satheesan Nair v. Jayasree and Anjali

# **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 MARCH 2023 / 24TH PHALGUNA, 1944** **MAT.APPEAL NO. 203 OF 2019 AGAINST THE JUDGMENT DATED 31.08.2015 IN O.P.NO.312 OF 2014 ON THE FILES OF THE FAMILY COURT, ATTINGAL** ## **APPELLANT/RESPONDENT:** **SATHEESAN NAIR, AGED 58 YEARS, SON OF MADHAVAN NAIR, MADHAVI SADANAM, PADMVILASAM HOUSE, ANAD P.O., NEDUMANGADU, PIN - 695 544.** **BY ADVS. S.VINOD BHAT KUM.ANAGHA LAKSHMY RAMAN** ## **RESPONDENTS/PETITIONERS:** - **1 JAYASREE,** **AGED 53 YEARS, D/O.PARAMESAWARA KURUP, VIJAYAVILASOM HOUSE, PADINJATTELAYIL, MADAVOOR VILLAGE, MADAVOOR P.O., VARKALA, PIN - 695 602.** - **2 ANJALI,** **AGED 21 YEARS, D/O.JAYASREE, VIJAYAVILASOM HOUSE, PADINJATTELAYIL, MADAVOOR VILLAGE, MADAVOOR P.O., VARKALA, PIN - 695 602.** **BY ADVS. SRI.R.RAJESH (VARKALA) SRI.M.KIRANLAL SRI.MANU RAMACHANDRAN SRI.T.S.SARATH** 2 C.M.Appl.No.1 of 2019 in Mat.Appeal No.203 of 2019 & Mat.Appeal No.203 of 2019 **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 08.03.2023, THE COURT ON 15.03.2023 DELIVERED THE FOLLOWING:** 3 C.M.Appl.No.1 of 2019 in Mat.Appeal No.203 of 2019 & Mat.Appeal No.203 of 2019 ## **ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ.** **-----------------------------------------------------------** **C.M.Appl.No.1 of 2019 in Mat.Appeal No.203 of 2019 & Mat.Appeal No.203 of 2019** **----------------------------------------------------------Dated this the 15[th] day of March, 2023** ## **ORDER/JUDGMENT** ## P.G. Ajithkumar, J. The respondent in O.P.No.312 of 2014 on the file of the Family Court, Attingal is the appellant. He assails in this appeal filed under Section 19(1) of the Family Courts Act, 1984, the judgment and the decree dated 31.08.2015 in O.P.No.312 of 2014. There is a delay of 1223 days in filing the appeal. The appellant filed the C.M.Appl.No.1 of 2019 under Section 5 of the Limitation Act, 1963 seeking to condone the said delay. 2. The respondents entered appearance and filed a counter affidavit refuting the assertions in the affidavit filed in support of the C.M.Application. 3. Heard the learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the respondents. 4 C.M.Appl.No.1 of 2019 in Mat.Appeal No.203 of 2019 & Mat.Appeal No.203 of 2019 4. The decree under challenge is an exparte one. Explanation for the delay is a requisite consideration in both C.M.Application and the appeal. Hence, we proceed to decide both in common. 5. The reasons stated for the delay is that there were mediation talks between the parties and the appellant was under a bona fide impression that the disputes would be settled amicably. Therefore. he waited for the outcome of the mediation attempts and that resulted in the delay in filing the appeal. 6. The respondents would contend that the reasons stated for the delay are absolutely incorrect. The respondents pointed out that after passing a decree on 31.08.2015, the appellant has filed the petition to set aside the said decree, which is an exparte one. The Family Court allowed that petition on the condition of depositing the sum of past maintenance ordered to be paid as per the decree. Rs.2,88,000/- is the amount of past maintenance. The appellant did not pay that amount and the petition for setting 5 C.M.Appl.No.1 of 2019 in Mat.Appeal No.203 of 2019 & Mat.Appeal No.203 of 2019 aside the exparte decree was accordingly dismissed. An amount of Rs.14,88,000/- is now due from the appellant to the respondents under the decree. The attempt of the appellant is only to delay realisation of the said amount. Accordingly, the respondents seek to dismiss the C.M.Application and the appeal. 7. The learned counsel appearing for the appellant would submit that due to old-age, the appellant could not raise money sufficient to make payment of the amount ordered by the Family Court. He being a person having no income and suffering from various diseases, a lenient view in the matter is required. The learned counsel also would point out that the Family Court rendered the judgment dated 31.08.2015 without stating any reason. The decree was passed on the basis of the pleadings in the original petition and without there having any evidence in support of the same. 8. While considering an application for condonation of delay, the merits of the claim in the original petition 6 C.M.Appl.No.1 of 2019 in Mat.Appeal No.203 of 2019 & Mat.Appeal No.203 of 2019 ordinarily has no relevance. In this case, however, there was total lack of evidence for allowing the claim of the respondents as prayed for. Since the appeal also is being considered, that fact assumes importance. One of the claims was return of gold ornaments. Without there having any evidence, other than a marriage certificate, the Family Court ought not have entered into such a finding. The Family Court has also not given any reason for reaching the conclusions accepting the claim of the respondents in the original petition in toto. In such circumstances, we are of the view that on merits, the claim in O.P.No.312 of 2014 was not liable to be decreed as prayed for. 9. 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. 7 C.M.Appl.No.1 of 2019 in Mat.Appeal No.203 of 2019 & Mat.Appeal No.203 of 2019 10. 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. - 21.2 The terms “sufficient cause” should be 8 C.M.Appl.No.1 of 2019 in Mat.Appeal No.203 of 2019 & Mat.Appeal No.203 of 2019 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 second calls for a liberal delineation. 9 C.M.Appl.No.1 of 2019 in Mat.Appeal No.203 of 2019 & Mat.Appeal No.203 of 2019 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] ## 11. 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 10 C.M.Appl.No.1 of 2019 in Mat.Appeal No.203 of 2019 & Mat.Appeal No.203 of 2019 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. 12. From the materials on record, it cannot be said that the reasons stated by the appellant for condonation of delay is sufficient. However, considering the facts and circumstances of the case mentioned hereinbefore in the light of the law laid down in the aforesaid decisions, we are of the view that a lenient view shall be taken. But, while doing so, the inconvenience caused to the respondents has to be mitigated. The past maintenance as per the decree itself is 11 C.M.Appl.No.1 of 2019 in Mat.Appeal No.203 of 2019 & Mat.Appeal No.203 of 2019 Rs.2,88,000/-. We are of the view that delay can be condoned and the appeal allowed on the condition of payment of Rs.2,00,000/- by the appellant to the respondents, within a period of three weeks from today. Out of the said amount, Rs.1,75,000/- will be adjusted against the amount due as per the decree that may be passed in O.P.No.312 of 2014 by the Family Court, Attingal and the balance amount of Rs.25,000/will be towards cost for condonation of delay. On such payment, the Family Court will restore on file and proceed to dispose of O.P.No.312 of 2014 in accordance with law. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr