Shakkira Aboobacker v. Anil Muhammed

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 21[ST] DAY OF OCTOBER 2021 / 29TH ASWINA, 1943** **F.A.O.NO.103 OF 2019** **AGAINST THE COMMON ORDER DATED 03.02.2018 IN I.A.NOS.288 &** **289 OF 2017 IN O.S.NO.248 OF 2010 ON THE FILE OF** **THE SUB COURT, TIRUR** **APPELLANT:** **SHAKKIRA ABOOBACKER, AGED 55 YEARS, W/O. LATE ABOOBACKER, VALIYIL HOUSE, NEAR USHUS SCHOOL, VATTAMKULAM P. O., PIN - 679578, MALAPPURAM DISTRICT** ## **BY ADV. VARGHESE C.KURIAKOSE** ## **RESPONDENT:** **ANIL MUHAMMED, AGED 47 YEARS, S/O. M. P. M. ABDUNNI, DR. C. M. KUTTY'S COMPLEX, CHANDAPPADI, PONNANI P. O., MALAPPURAM DISTRICT - 679583** ## **BY ADV SMT.DEEPA NARAYANAN** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 21.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** F.A.O.NO.103 OF 2019 2 ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellant is the defendant in O.S. No.248 of 2010 on the file of the Sub Court, Tirur, a suit filed by the respondent herein for recovery of a sum of Rs.9,50,000/- together with interest, on the strength of a cheque. The appellant filed written statement denying the liability. The suit was posted for trial on 09.06.2015. It was decreed ex-parte on 12.06.2015. The appellant filed I.A. No.288 of 2017, an application under Section 5 of the Limitation Act, 1963, seeking an order to condone the delay of 584 days in filing the application to set aside the ex-parte decree, i.e., I.A. No.289 of 2017. By a common order dated 03.02.2018, the Sub Court dismissed both the applications. Feeling aggrieved, the appellant has filed this appeal along with C.M. Application No.1 of 2019 for condonation of delay of 391 days. 2. On 25.09.2019, when C.M. Application No.1 of 2019 came up for consideration, this Court issued notice to the respondent-plaintiff. 3. Today, when this appeal along with C.M.Application came up for consideration, as agreed by the learned counsel on both sides, the matter is finally heard. F.A.O.NO.103 OF 2019 3 4. C.M.Application No.1 of 2019 is one filed by the appellant-defendant seeking an order to condone the delay of 391 days in filing the appeal. The learned counsel for the appellant would submit that the appellant, who is a widow aged 55 years, has to face series of litigations, both criminal and civil, after the death of her husband. The appellant is prepared to offer security for the entire plaint claim in O.S.No.248 of 2010 together with interest, to the satisfaction of the trial court, as a condition for condoning the delay of 391 days in filing this appeal and the delay of 584 days in filing I.A.No.289 of 2017 before the trial court to set aside the ex-parte decree in O.S.No.248 of 2010. The petitioner is also prepared to pay a reasonable cost to the respondent-plaintiff for allowing those applications for condonation of delay. 5. The learned counsel for the respondent-plaintiff would submit that, considering the extent of delay, exemplary cost has to be imposed on the appellant-defendant for condoning the delay in filing the application to set aside the ex-parte decree and also the delay in filing this appeal. 6. In **Collector, Land Acquisition v. Katiji [(1987) 2 SCC 107]** , in the context of Section 5 of the limitation Act, 1963, F.A.O.NO.103 OF 2019 4 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 life-purpose for the existence of the institution of Courts. 7. 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 second calls for a liberal delineation. 8. 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** F.A.O.NO.103 OF 2019 5 **[(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. An application for condonation of delay should be drafted with careful concern and no court shall deal with such an application in a routine manner. 9. 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 F.A.O.NO.103 OF 2019 6 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, 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 F.A.O.NO.103 OF 2019 7 suit is one for specific performance and also the extent of delay, etc. 10. In O.S.No.248 of 2010, the Sub Court passed an exparte decree. The appellant filed I.A.No.289 of 2017 seeking an order to set aside the ex-parte decree and that application was supported by I.A.No.288 of 2017 seeking an order to condone the delay of 584 days. Those applications ended in dismissal by the common order dated 03.02.2018. Challenging that order, the appellant filed this appeal along with C.M.Application No.1 of 2019 for condonation of delay of 391 days. 11. Since the appellant-defendant is prepared to offer security to the satisfaction of the trial court for the entire plaint claim in O.S.No.248 of 2010 together with interest and also prepared to pay cost to the respondent-plaintiff for condonation of the delay in filing application to set aside the ex-parte decree and also the delay in filing this appeal, taking note of the law laid down by the Apex Court in **Robin Thapa [(2019) 7 SCC 359]** , we dispose of this appeal by setting aside the common order dated 03.02.2018 of the Sub Court, Tirur, in I.A.Nos.288 of 2017 and 289 of 2017 in O.S.No.248 of 2010 subject to the following conditions; F.A.O.NO.103 OF 2019 8 - (i) The appellant-defendant shall furnish security to the satisfaction of the Sub Court, Tirur, for the entire plaint claim in O.S.No.248 of 2010 together with interest, within one month from the date of receipt of a certified copy of this judgment. - (ii) The appellant-defendant shall pay a sum of Rs.20,000/- as cost to the respondent-plaintiff for condonation of delay of 391 days in filing this appeal and for condonation of delay of 584 days in filing the application to set aside the ex-parte decree in O.S.No.248 of 2010, within one month from the date of receipt of a certified copy of this judgment. - (iii) On furnishing such security and payment of cost as above, I.A.No.288 of 2017 and 289 of 2017 in O.S.No.248 of 2010 will stand allowed by condoning the delay of 584 days in filing I.A.No.289 of 2017 and the ex-parte decree in O.S.No.248 of 2010 will stand set aside by allowing I.A.No.289 of 2017. - (iv) Thereafter the Sub Court shall finally dispose of O.S.No.248 of 2010, as expeditiously as possible at any rate, within a further period of six months. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** MIN