Soosanayakam & Soosi Soosan v. R. Sajeev Kumar

## **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 23[RD] DAY OF MARCH 2022 / 2ND CHAITHRA, 1944 F.A.O.NO.73 OF 2021** **AGAINST THE ORDER DATED 01.02.2021 IN I.A.NO.4307/2014 IN** **O.S.NO.62 OF 2009 OF II ADDITIONAL SUB COURT,** ## **THIRUVANANTHAPURAM** ## **APPELLANTS/PETITIONERS:** - **1 SOOSANAYAKAM,** **AGED 58 YEARS, S/O.BURNABAS, T.C.27/482(2), SOORYA, URRA NO.34, NEAR ARC JUNCTION, VANCHIYOOR,** **THIRUVANANTHAPURAM,** **PRESENTLY RESIDING AT NEW JERSEY, UNITED STATES OF AMERICA, BY POWER OF ATTORNEY HOLDER DOMENIC RAPHAEL, KARUNYAM, 51/A, CHETHANA NAGAR, VALATHUNGAL, ERAVIPURAM, KOLLAM P.O.** - **2 SOOSI SOOSAN,** **W/O.SOOSANAYAKAM, T.C.27/482(2), SOORYA, URRA NO.34, NEAR ARC JUNCTION, VANCHIYOOR, THIRUVANANTHAPURAM.** **BY ADVS. M.R.ANANDAKUTTAN M.A.ZOHRA MAHESH ANANDAKUTTAN** 2 F.A.O.No.73 of 2021 ## **RESPONDENT/COUNTER PETITIONER:** **R.SAJEEV KUMAR** **S/O.RADHAKRISHNAN, T.C.32/1081, KARIKKAKOM MURI, KADAKAMPALLI VILLAGE, THIRUVANANTHAPURAM - 695 542.** **BY ADV G.S.REGHUNATH** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 23.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 F.A.O.No.73 of 2021 ## **O R D E R** ## Ajithkumar, J. This appeal under Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908 was filed by the defendants in O.S.No.62 of 2009 of the Additional Sub Court-II, Thiruvananthapuram. They are aggrieved by the order dismissing I.A.Nos.4307 and 4308 of 2019. 2. I.A.No.4308 of 2019 was filed under Order IX, Rule 13 of the Code, seeking to set aside the exparte decree in O.S.No.62 of 2009 dated 15.10.2014. I.A.No.4307 of 2019 was filed under Section 5 of the Limitation Act seeking to condone the delay of five days. The appellants contend that both the appellants were in the United States of America and they could not reach the court when it was listed for trial and only on 12.11.2014 the 2nd appellant could come back. By that time the suit was already decreed ex parte and therefore, she filed these applications. The delay of five days occurred since it took some time for her to take necessary steps for filing the applications. 3. The respondent filed an objections contending that 4 ## F.A.O.No.73 of 2021 the reasons stated for non-appearance as well as the delay are incorrect and the intention of the appellants is to drag the litigation. 4. The learned Sub Judge marked Ext.A1 on the side of the appellants. After hearing both sides, the court took the view that there was no sufficient reason to condone the delay. It was observed that even on taking a lenient view, the reasons furnished by the appellants could not be said reasonable or plausible to be accepted. Accordingly, the applications were dismissed. 5. On 16.11.2021, this appeal was admitted, ordering notice to the respondent. Further proceedings in the suit was stayed for a period of one month. The order of stay was extended from time to time. 6. Heard the learned counsel for the appellants as well as the learned counsel for the respondent. 7. The learned counsel appearing for the appellants would submit that on a perusal of Ext.A1, it would be evident that the 2[nd] petitioner, who filed the interlocutory applications for and on behalf of the 1[st] appellant as well, reached India 5 ## F.A.O.No.73 of 2021 only on 12.11.2014, and therefore, they were unable to attend the court at the time when the suit was taken up for trial. This is a case where the appellants have filed written statement and been seriously contesting the matter. The fact that the appellants were abroad is not in dispute. In the said circumstances, the view taken by the court below appears to be incorrect. 8. The Limitation Act, 1963 was enacted by the Parliament to consolidate and amend the law for the limitation of suits and other proceedings and for purposes connected therewith. Section 5 of the Act deals with extension of prescribed period in certain cases. As per Section 5, any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. As per Explanation to Section 5, the fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in 6 ## F.A.O.No.73 of 2021 ascertaining or computing the prescribed period may be sufficient cause within the meaning of this Section. 9. It is well settled that the Law of Limitation is founded on public policy to ensure that the parties to a litigation do not resort to dilatory tactics and seek legal remedy without delay. In an application filed under Section 5 of the Limitation Act, the court has to condone the delay if sufficient cause is shown. Adopting a liberal approach in condoning the delay is one of the guiding principles, but such liberal approach cannot be equated with a licence to approach the court-at-will disregarding the time limit fixed by the relevant statute. The acts of negligence or inaction on the part of a litigant do not constitute sufficient cause for condonation of delay. Therefore, in the matter of condonation of delay, sufficient cause is required to be shown, thereby explaining the sequence of events and the circumstances that led to the delay. ## 10. 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 7 ## F.A.O.No.73 of 2021 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. 11. 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. 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, justice- 8 F.A.O.No.73 of 2021 oriented, 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 cannot be allowed a totally unfettered free play. 21.8 There is a distinction between inordinate 9 F.A.O.No.73 of 2021 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.” 10 F.A.O.No.73 of 2021 12. In **Esha Bhattacharjee** , after summerising the principles applicable while dealing with an application for condonation of delay, the Apex Court added some more guidelines taking note of the present day scenario, that an application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. An application for condonation of delay should not be dealt with in a routine manner on the basis of individual philosophy which is basically subjective. Para.22 of the judgment reads thus; “22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:— 22.1 An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. 22.2 An application for condonation of delay should not be dealt with in a routine manner on the base 11 F.A.O.No.73 of 2021 of individual philosophy which is basically subjective. 22.3 Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. 22.4 The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.” 13. In **Rafeek and another v. K. Kamarudeen and** **another [2021 (4) KHC 34 : (2021) 2 RCR (Rent) 223 : 2021 AIR CC 2752]** a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party 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 12 ## F.A.O.No.73 of 2021 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. 14. From the above referred decisions, it is very much clear that the period of delay being less, a lenient view is obligated. Reaching in India on 12.11.2014, the 2[nd] appellant filed the applications for setting the aside exparte decree along with the application for condonation of delay. The delay obviously had occurred on account of the preparations the 2nd petitioner had to make by approaching her lawyer and such other things. Considering the circumstances realistically, we deem it appropriate that the delay is liable to be condoned and the decree set aside. That will help the parties to have a decision on merits, which shall ordinarily be the rule in every litigation, unless there are compelling reasons to sustain the ex parte decision. 15. In the above circumstances, we allow this appeal, and set aside the common order of the Additional Sub 13 F.A.O.No.73 of 2021 Judge-II, Thiruvananthapuram. I.A.Nos.4307 and 4308 of 2014 in O.S.No.62 of 2009 are allowed. O.S.No.62 of 2009 stands restored on file. Both parties will appear before the Additional Sub Court-II, Thiruvananthapuram, on 07.04.2022. 16. It being a suit of 2009, the Additional Sub Court, Thiruvananthapuram will take every endeavour to dispose the suit as expeditiously as possible, at any rate, within a period of three months from the date of reopening of the court after summer recess. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr