Shibu v. Sreevidhya and Vijayamma

# **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 16[TH] DAY OF NOVEMBER 2022/25TH KARTHIKA,1944** **MAT.APPEAL NO. 5 OF 2020 AGAINST THE ORDER DATED 29.10.2018 IN I.A.NOS.240 & 241 OF 2018 IN O.P.NO.117 OF 2014 OF FAMILY COURT, CHAVARA** ## **APPELLANT/1ST RESPONDENT:** **SHIBU,** **AGED 42 YEARS, S/O.VIJAYAMMA, POONTHOTTATHIL VEEDU, ELANGA MANGALAM, ENATH P.O., PATHANAMTHITTA DISTRICT.** **BY ADVS. JACOB P.ALEX JOSEPH P.ALEX MANU SANKAR P.** ## **RESPONDENTS/PETITIONER & 2ND RESPONDENT:** - **1 SREEVIDHYA AGED 34 YEARS, D/O.ARUMUKHAM, SREEMANDIRAM KIZHAKKATHIL(SAROVARAM), OLAMTHURUTHU, PANMANA P.O., KARUNAGAPPALLY TALUK, PIN-691 583.** - **2 VIJAYAMMA, AGED 62 YEARS, W/O.SUKUMARAN, POONTHOTTATHIL VEEDU, ELANGA MANGALAM, ENATH P.O., PATHANAMTHITTA DISTRICT, PIN-691 526.** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 16.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Mat.Appeal No.5 of 2020 ## **JUDGMENT** ## P.G.Ajithkumar, J. This appeal under Section 19(1) of the Family Courts Act, 1984 is filed by the 1[st] respondent in O.P.No.117 of 2014 on the file of the Family Court, Chavara. He filed I.A.Nos.240 and 241 of 2018 seeking to set aside the exparte decree passed in the said O.P. on 30.10.2015 and to condone delay of 828 days in filing the application. The Family Court dismissed both the applications as per order dated 29.10.2018. The appellant assails the said common order in this appeal. 2. Although notice was received, the respondent did not choose to appear before this Court. 3. Heard the learned counsel appearing for the petitioner. 4. The respondent filed O.P.No.117 of 2014 seeking recovery of gold ornaments, patrimony and movables from the appellant and his mother, who was the 2[nd] respondent in the O.P. Both of them entered appearance and participated in the mediation process. Later, they remained exparte, resulting in passing of an exparte decree in O.P.No.117 of 2014. The 3 Mat.Appeal No.5 of 2020 appellant filed I.A.Nos.240 and 241 of 2018 contending that he had to go abroad in connection with his employment and his mother could not get information from the lawyer in time and eventually fell ill also. It was contended that only when notice in E.P.No.48 of 2017 was received from the Family Court, Pathanamthitta, the appellant came to know regarding passing of the decree and immediately he filed the applications. The respondent did not file any objection. The Family Court, after hearing both sides, found that the reasons stated by the appellant were insufficient to condone the delay or to set aside the exparte decree. 5. The learned counsel appearing for the appellant would submit that when the respondent-wife did not file any objection, the averments in the affidavit filed in support of I.A.Nos.240 and 241 of 2018 ought to have been accepted as true by the Family Court. The view taken by the Family Court that no documentary evidence to show that the appellant went abroad was produced, and therefore the case set forth by him could not be believed, is untenable. 4 Mat.Appeal No.5 of 2020 ## 6. 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. 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; 5 Mat.Appeal No.5 of 2020 “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 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 6 Mat.Appeal No.5 of 2020 ## 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. 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] 7 Mat.Appeal No.5 of 2020 8. 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. 9. From the averments in the affidavit, it is seen that the appellant went abroad in connection with his employment. It is true that his mother, the 2[nd] respondent in O.P.No.117 of 2014 was available in station. It is averred that no proper communication was received by his mother and subsequently she fell ill also. Considering the said facts stated to by the 8 Mat.Appeal No.5 of 2020 appellant, which stands uncontroverted, we are of the view that a lenient view in the matter can be taken. Therefore, the delay can be condoned and the exparte decree set aside on imposing costs to compensate the inconvenience caused to the respondent. 10. Accordingly, we allow this appeal on the condition of payment of a cost of Rs.2,000/- (Rupees two thousand only) to the respondent. The appellant shall pay the cost to the respondent or deposit in the Family Court, Chavara within three weeks. On such payment, I.A.Nos.240 and 241 of 2018 will stand allowed. The Family Court, Chavara will restore O.P.No.117 of 2014 on file and dispose of it within a period of three months from the date of restoration of the case. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** ## **Sd/P.G. AJITHKUMAR, JUDGE** dkr 9 Mat.Appeal No.5 of 2020 ## **APPENDIX OF MAT.APPEAL 5/2020** ## **PETITIONER ANNEXURES** |**ANNEXURE A**|**TRUE COPY OF THE JUDGMENT DATED**| |---|---| ||**30.10.2015 IN OP NO.117/2014 BEFORE**| ||**FAMILY COURT, CHAVARA.**| |**ANNEXURE B**|**TRUE COPY OF THE ORDER DATED**| ||**15.11.2019 IN OP(FC) 658 OF 2019**| ||**BEFORE HIGH COURT OF KERALA.**| |**ANNEXURE C**|**TRUE COPY OF THE JUDGMENT DATED**| ||**04.12.2019 IN OP(FC) 658 OF 2019**| ||**BEFORE HIGH COURT OF KERALA.**|