SHAJAHAN v. S. FYSHAL KHAN

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 3[RD] DAY OF AUGUST 2022 / 12TH SRAVANA, 1944 ``` ``` OP(C) NO. 2607 OF 2019 ``` ``` IN OS 109/2009 OF II ADDITIONAL SUB COURT,TRIVANDRUM CMA NOS.180 & 181/2019 OF ADDITIONAL DISTRICT COURT- VII, THIRUVANANTHAPURAM ``` ## `PETITIONER/DEFENDANT IN O.S./APPELLANT IN C.M.A.` ``` SHAJAHAN, AGED 46 YEARS, S/O. SHAHUL HAMEED, RESIDING AT T.C. 58/223, SREEMOOLAM NAGAR, IRANIMUTTAM, MANAKKADU VILLAGE, THIRUVANANTHAPURAM ``` ``` BY ADVS.R.SURAJ KUMAR SRI.SUNIL J.CHAKKALACKAL SMT. SALINI N. SHRI.MATHEW JOSEPH BALUMMEL ``` ## `RESPONDENT/PLAINTIFF IN O.S./RESPONDENT IN C.M.A.` ``` S.FYSHAL KHAN, RESIDING AT T.C.49/540(6), MANACAUD P.O., THIRUVANANTHAPURAM - 695 009 ``` ``` BY ADV SRI.R.V.SREEJITH ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(C)No.2607/2019 ``` ``` -:2:- ``` Dated this the 3[rd] day of August,2022 ## **J U D G M E N T** The original petition is filed to set aside the common order in C.M.A. Nos.180 & 181/2019(Ext.P8) of the Court of the Additional District Judge-VII, Thiruvananthapuram. 2. The skeletal facts relevant for the determination of the original petition are: the petitioner was the defendant in O.S.No.109/2009 filed by the respondent before the Court of the Additional Subordinate Judge,Thiruvananthapuram(Trial Court). The petitioner was set ex parte due to his failure to appear before the Trial Court in the year 2013. The petitioner’s counsel had failed to communicate the matter to him. He had filed an application to set aside the ex parte decree and the case was listed for trial to 12.04.2017. Again, the matter was not communicated ``` O.P.(C)No.2607/2019 ``` ``` -:3:- ``` to the petitioner. Consequently, the suit was again decreed and Ext.P1 judgment was passed. Thereafter, the respondent put decree to execution by filing E.P. No.311/2017. On receipt of the notice in the execution proceedings, the petitioner had filed E.A.No.704/2018, before the Execution Court, to review the warrant of arrest. On 29.11.2018, the matter was referred for mediation. An oral understanding was arrived between the parties to settle the disputes amicably. But, again a warrant of arrest was issued against the petitioner. Then, the petitioner made earnest efforts to obtain the copies of the proceedings from the court below. The petitioner engaged a new counsel and filed I.A.Nos.151/2019 and 153/2019 (Exts P2 and P3), to set aside the ex parte decree and to condone the delay of 340 days. He also filed Ext.P4 application to stay the execution proceedings. As the court below had failed ``` O.P.(C)No.2607/2019 ``` ``` -:4:- ``` to pass orders on Exts P2 and P3 applications, the petitioner filed O.P.(C)No.656/2019 before this Court. This Court, by Ext P5 judgment, directed the court below to consider and dispose of the pending applications within a time frame. The Trial Court, without appreciating Exts P2 and P3 in their proper perspective, by Ext P6 common order, dismissed Exts P2 and P3. Aggrieved by Ext P6 common order, the petitioner preferred C.M.A.No.180/2019 before the Court of the District Judge, Kollam(Appellate Court). The Appellate Court, by the impugned Ext P8 common order, dismissed the appeal and confirmed Ext.P6 common order. Ext. P8 is erroneous and wrong. Hence, the original petition. 3. Heard; Sri. R.Suraj Kumar, the learned counsel appearing for the petitioner and Sri. R.V.Sreejith, the learned counsel appearing for the ``` O.P.(C)No.2607/2019 ``` ## `-:5:-` respondent. 4. The point is whether there is any illegality in Ext.P8 common order passed by the court below?. 5. On an appreciation of the pleadings and materials on record, it is seen that the petitioner had entered appearance in the suit and filed his written statement. He was thereafter set ex parte on 13.10.2009. Then, he filed I.A.No.7620/2009, which was allowed and the decree was set aside. Again the petitioner was set ex parte on 30.11.2013, which was also set aside at the instance of the petitioner on the order passed in I.A.No.573/2014. Thereafter, the petitioner filed an application to amend the written statement. Even though leave was granted, he did effect the amendment and the application was dismissed. Later, he filed I.A.No.2511/2015 to restore the amendment application. Since the petitioner was ``` O.P.(C)No.2607/2019 ``` ``` -:6:- ``` again absent and he was again set ex parte and the suit was decreed on 12.04.2017. Then, the respondent filed the execution petition on 31.10.2017 to execute the decree. The petitioner, on receipt of notice in the execution petition, appeared before the Execution Court on 12.02.2018. The parties were referred for mediation, but the talks failed. Later, the petitioner filed Ext.P2 application to set aside the ex parte decree and Ext.P3 application to condone the delay of 340 days in filing Ext.P2 application. 6. In paragraph No.4 of Ext.P2 application, the petitioner has specifically admitted that he received notice in the execution petition on 12.02.2018. However, Exts P2 and P3 were only filed on 17.01.2019. The courts below, after appreciating Exts P2 and P3 applications, have concurrently found that there is willful latches and negligence on the petitioner, and he ``` O.P.(C)No.2607/2019 ``` ``` -:7:- ``` was not diligent in prosecuting the suit. Consequently, the Trial Court dismissed Exts P2 and P3 applications, by Ext P6 common order, which has been confirmed by the Appellate Court by Ext P8 common order. 7. In a recent decision, 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.** xxxxxxxxx”. [emphasis supplied] ## 8. In **Pandlik Talam Patil vs Talgaou 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 ``` O.P.(C)No.2607/2019 ``` ``` -:8:- ``` 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 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] ## 9. 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] 10. The above position has been reiterated by the Hon'ble Supreme Court in **Esha Bhattacharjee v.** **Managing Committee of Raghunathpur Nafar** ``` O.P.(C)No.2607/2019 ``` ``` -:9:- ``` ## **Academy and Others** [(2013) 12 SCC 649] by holding ## that: **(i)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.** (ii) 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. (iii) **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] 11. Therefore, the law is succinctly laid down in the afore-cited precedents that while considering an application for condonation of delay, a routine explanation would not be enough in the nature of indicating sufficient cause to justify the delay which ``` O.P.(C)No.2607/2019 ``` ``` -:10:- ``` will depend on the back drop of each issue and which will have to be weighed carefully by the Courts based on the fact situation, and in the case of inordinate delay a strict approach is warranted and that “delay defeats equity”. 12. Similarly, the Hon’ble Supreme Court in **Khimji Vidhu v. Premier High School** [(1999) 9 SCC 264], has held that the High Courts should sparingly exercise its jurisdiction under Article 227 of the Constitution of India, but can exercise the same to correct the errors of jurisdiction and not to upset pure finding of fact which fall in the domain of an Appellate Court. The same view has been reiterated by the Hon’ble Supreme Court in **Ouseph Mathai and Ors. v. M. Abdul Khadir** [(2002) 1 SCC 319]. 13. On a consideration of the pleadings and materials on record, and the concurrent findings ``` O.P.(C)No.2607/2019 ``` ``` -:11:- ``` rendered by the courts below, I find that the petitioner has not offered any sufficient cause for the delay from 12.02.2018 to 17.01.2019 which was well within his knowledge. I do not find any reason or ground to interfere with the factual findings of the courts below, which have found that the petitioner was negligent in defending the suit. There is no ground warranting interference by this Court under Article 227 of the Constitution of India. The original petition fails and is dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/03.08.22 //True copy/ P.A.To Judge ``` O.P.(C)No.2607/2019 ``` ## `-:12:-` ## `APPENDIX` ``` PETITIONER EXHIBITS EXHIBIT P1A TRUE COPY OF THE JUDGMENT DATED 12.04.2017 IN O.S. NO. 109/2009 ON THE FILE OFTHEADDITIONALSUBJUDGE, THIRUVANANTHAPURAM ``` ``` EXHIBIT P2ATRUECOPYOFTHEAPPLICATION I.A.NO.151/2019 IN O.S.NO. 109 2009 DATED 17.01.2019 ON THE FILE OF THE ADDITIONAL SUB COURT, THIRUVANANTHAPURAM ``` - `EXHIBIT P3 TRUE COPY OF THE APPLICATION I.A.NO. 153/2019 IN O.S.NO. 109 2009 DATED 17.01.2019 ON THE FILE OF THE ADDITIONAL SUB COURT, THIRUVANANTHAPURAM` - `EXHIBIT P4 TRUE COPY OF THE APPLICATION I.A.NO. 152/2019 IN O.S.NO. 109 2009 DATED 17.01.2019 ON THE FILE OF THE ADDITIONAL SUB COURT, THIRUVANANTHAPURAM` - `EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 17.03.2019 IN O.P. (C) 656/2019 ON THE FILE OF THIS HON'BLE COURT` - `EXHIBIT P6 TRUE COPY OF THE COMMON ORDER DATED 08.04.2019 IN I.A.NO. 151/2019 AND I.A.NO. 153 2019 IN O.S.NO.109/2009 ON THE FILE OF THE II ADDITIONAL SUB JUDGE, THIRUVANANTHAPURAM` - `EXHIBIT P7 A TRUE COPY OF THE JUDGMENT DATED 30.07.2019 IN O.P. (CIVIL NO. 2038/2019 ON THE FILE OF THIS HON'BLE COURT` ``` EXHIBIT P8A TRUE COPY OF THE COMMON ORDER DATED 05.09.2019 IN CMA NO. 180/2019 AND CMA NO. 181/2019 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE - VII, THIRUVANANTHAPURAM ``` ``` RESPONDENTS’ EXHIBITS: NIL ```