Sree Nandanam Hotels (P) Ltd. v. Respondents 1 to 8 / Plaintiffs, 2nd Defendant and Third Supplementary Defendant

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 10[TH] DAY OF JUNE 2022 / 20TH JYAISHTA, 1944 ``` ``` F.A.O.NO.84 OF 2021 ``` ``` AGAINST THE ORDER DATED 08.06.2020 IN I.A.NO.1535 OF 2018 IN O.S.NO.13 OF 2016 ON THE FILE OF THE SUB COURT, ``` ## **`CHAVAKKAD`** ## **`APPELLANT/PETITIONER/1ST DEFENDANT:`** ``` SREE NANDANAM HOTELS (P) LTD., THRISSUR SHORNUR ROAD, THRISSUR VILLAGE AND TALUK, PIN - 680 002, REPRESENTED BY ITS MANAGING DIRECTOR, K. BHARATHAN @ BHARATHAN MENON, AGED 46 YEARS, S/O.MULLAPPILLY BALAKRISHNAN, POONKUNNAM DESOM, POONKUNNAM P.O., THRISSUR VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT, PIN - 680002. ``` ``` BY ADVS.D.G.VIPIN KAROL MATHEWS SEBASTIAN ALENCHERRY ``` ## **`RESPONDENTS/RESPONDENTS 1 TO 8/PLAINTIFFS, 2ND DEFENDANT`** ## **`AND THIRD SUPPLEMENTARY DEFENDANT:`** - **`1 PUTHIYAVEETTIL KARIPPAYIL ABOOBACKER, AGE NOT KNOWN, S/O. MOIDUNNY, PUTHIYAVEETTIL KARIPPAYIL HOUSE, PUNNA DESOM, MANATHALA AMSOM, CHAVAKKAD TALUK, THRISSUR DISTRICT, PIN – 680506.`** - **`2 AYISHA, AGE NOT KNOWN, W/O. PUTHIYAVEETTIL KARIPPAYIL ABOOBACKER, PUTHIYAVEETTIL KARIPPAYIL HOUSE, PUNNA DESOM, MANATHALA AMSOM, CHAVAKKAD TALUK, THRISSUR DISTRICT, PIN - 680506.`** - **`3 AMINAKUTTY, AGED ABOUT 61 YEARS,`** FAO No.84 of 2021 2 ``` W/O. PUTHIYAVEETTIL KARIPPAYIL LATE ALIKUTTY, PERAKAM AMSOM AND DESOM, PERAKAM P. O., THRISSUR DISTRICT, PIN - 680506. ``` ``` 4NESIRI, AGED ABOUT 41 YEARS, D/O. PUTHIYAVEETTIL KARIPPAYIL LATE ALIKUTTY, PERAKAM AMSOM AND DESOM, PERAKAM P. O., THRISSUR DISTRICT, PIN - 680506. ``` ``` 5MUHAMMED NESIM, AGED ABOUT 39 YEARS, S/O. PUTHIYAVEETTIL KARIPPAYIL LATE ALIKUTTY, PERAKAM AMSOM AND DESOM, PERAKAM P.O., THRISSUR DISTRICT, PIN - 680506. ``` ``` 6NESMA, AGED ABOUT 23 YEARS, D/O. PUTHIYAVEETTIL KARIPPAYIL LATE ALIKUTTY, PERAKAM AMSOM AND DESOM, PERAKAM P.O., THRISSUR DISTRICT, PIN - 680506, REPRESENTED BY HER GUARDIAN MOTHER 3RD RESPONDENT, AMINAKUTTY, W/O. PUTHIYAVEETTIL KARIPPAYIL LATE ALIKUTTY, PERAKAM AMSOM AND DESOM, PERAKAM P. O., THRISSUR DISTRICT, PIN - 680506. ``` - **`7 K. BHARATHAN @ BHARATHAN MENON, AGED 46 YEARS,`** ``` S/O. MULLAPPILLY BALAKRISHNAN, POONKUNNAM DESOM, POONKUNNAM P. O., THRISSUR VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT, PIN – 680002. ``` ## **`8 THESNI,`** ``` AGED ABOUT 43 YEARS, ``` ``` D/O. PUTHIYAVEETTIL KARIPPAYIL LATE ALIKUTTY, PERAKAM AMSOM AND DESOM, PERAKAM P. O., THRISSUR DISTRICT, PIN - 680506. ``` ## **`R7 BY ADV. DINESH MATHEW J.MURICKEN`** ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 10.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` FAO No.84 of 2021 3 ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellant is the 1[st] defendant in O.S.No.13 of 2016 on the file of the Sub Court, Chavakkad, a suit filed by respondents 1 to 6 herein/plaintiffs for recovery of a sum of a sum of Rs.34,36,666/- from the defendants towards arrears of licence fee. The appellant-1[st] defendant filed a written statement, contending that, he had taken the plaint schedule property on licence and a sum of Rs.1,31,24,929/- was spent for improvement and as per the licence agreement, the monthly licence fee has to be adjusted from the above amount. On 19.09.2018, when O.S.No.13 of 2016 was listed for trial, the defendants were set _ex parte_ and the Sub Court passed an _ex parte_ decree on 19.09.2018 itself. The appellant filed I.A.No.1535 of 2018 under Order IX Rule 13 of the Code of Civil Procedure, 1908, seeking an order to set aside the _ex parte_ decree in O.S.No.13 of 2016. By the order dated 08.06.2020, the court below dismissed I.A.No.1535 of 2018, on the ground that the appellant did not produce any medical records to show that he was laid up due to viral fever on 19.09.2018. Challenging the order dated 08.06.2020 of the Sub Court in I.A.No.1535 of 2018 in O.S.No.13 of 2016, the appellant-1[st] defendant is before this Court in this appeal, under Order XLIII FAO No.84 of 2021 4 Rule 1(d) of the Code of Civil Procedure. 2. On 20.12.2021, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondents by speed post, returnable within four weeks. Though service of notice to the 8[th] respondent was ordered by affixture, notice returned with an endorsement “affixture for 8[th] respondent done without witness”. The learned counsel for the appellant would point out that, the 8[th] respondent, who is the 3[rd] defendant in O.S.No.13 of 2016, has already been set _ex parte_ . In such circumstances, service of notice on the 8[th] respondent is declared as complete. Despite service of notice, none other than the 7[th] respondent have chosen to enter appearance. 3. On 14.02.2022 when this appeal came up for consideration, the learned counsel for the appellant pointed out that O.S.No.13 of 2016 stands listed for trial before the court below on 15.02.2022. Therefore, this Court granted an order of stay of the trial of O.S.No.13 of 2016, for a period of ten days, in I.A.No.1 of 2022. The said interim order, which was extended from time to time, is still in force. 4. Heard the learned counsel for the appellant and also the learned counsel for the 7[th] respondent. 5. The Limitation Act, 1963 was enacted by the FAO No.84 of 2021 5 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 satisfes the Court that he had sufcient 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 ascertaining or computing the prescribed period may be sufficient cause within the meaning of this Section. 6. 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 FAO No.84 of 2021 6 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, sufcient cause is required to be shown, thereby explaining the sequence of events and the circumstances that led to the delay. 7. 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 life-purpose for the existence of the institution of Courts. 8. 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 frst one warrants strict approach whereas the FAO No.84 of 2021 7 ## second calls for a liberal delineation. 9. 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. 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. 10. Order IX, Rule 13 of the Code provides for setting aside decree _ex parte_ against defendant. As per sub-rule (1) of Rule 13, in any case in which a decree is passed _ex parte_ against a defendant, he may apply to the court which the decree was passed for an order to set it aside; and if he satisfes the court that the summons was not duly served, or that he was prevented by any sufcient cause from appearing when the suit was called on for hearing, the court shall make FAO No.84 of 2021 8 an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. As per the first proviso to sub-rule (1), where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also. As per the second proviso to sub-rule (1), no court shall set aside a decree passed _ex parte_ merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. As per the Explanation, where there has been an appeal against a decree passed _ex parte_ under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that _ex parte_ decree. 11. In **G.P. Srivastava v. R.K. Raizada [(2000) 3 SCC 54]** in the context of an application filed under Order IX, Rule 13 of the Code, for setting aside an _ex parte_ decree, the Apex Court held that, the word ‘was prevented by any sufficient cause from appearing’ occurring in Order IX, Rule 13 of the Code must be liberally construed to enable the court to do FAO No.84 of 2021 9 complete justice between the parties, particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order IX, Rule 13 of the Code has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. 12. In **G.P. Srivastava** , the Apex Court held further that, ‘sufficient cause’ for non-appearance refers to the date on which the absence was made a ground for proceeding _ex parte_ and cannot be stretched to rely upon other circumstances anterior in time. If ‘sufficient cause’ is made out for nonappearance of the defendant on the date fxed for hearing when _ex parte_ proceedings initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where defendant approaches the court immediately and within the statutory time specifed, the discretion is normally exercised in his favour, provided the absence was not mala fde or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the _lis_ decided on merits. 13. In **Peeves Enterprises v. Muhammed Ashraf** FAO No.84 of 2021 10 **[2015 (3) KHC 981]** , relying on the law laid down by the Apex Court in **G.P. Srivastava** , a Division Bench of this Court held that, on an application filed under Order IX, Rule 13 of the Code of Civil Procedure, the court has to find out whether the erring party has made out sufficient cause for setting aside the _ex parte_ decree. When no negligence or inaction is imputable to the erring party and the absence was not mala fide or intentional, the discretion has to be exercised in his favour, especially when the application is within the statutory time limit. In appropriate cases, the plaintiff can be compensated by adequate costs for the loss of time and the inconvenience caused to him. But any such condition shall not be too onerous. 14. 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 FAO No.84 of 2021 11 messenger on 27.03.2015. Thus, the 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 suit is one for specific FAO No.84 of 2021 12 performance and also the extent of delay, etc. 15. During the course of arguments, the learned counsel for the appellant pointed out the judgment of this Court dated 24.11.2021 in F.A.O.No.70 of 2021, which is one filed by the 2[nd] defendant in O.S.No.13 of 2016, the 7[th] respondent herein, against the order dated 08.06.2020 in I.A.No.1534 of 2018 in O.S.No.13 of 2016, for setting aside the _ex parte_ decree dated 19.09.2018 in O.S.No.13 of 2016. By the judgment dated 24.11.2021, this Court allowed F.A.O.No.70 of 2021, by setting aside the _ex parte_ decree and the Sub Court is directed to finally dispose of O.S.No.13 of 2016, as expeditiously as possible, at any rate, within a period of five months from the date of production of a certified copy of the judgment. Paragraphs 17 and 18 of the said judgment read as follows:- “17. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that when I.A.No.1534 of 2018 in O.S.No.13 of 2016 was one filed by the appellant-2[nd] defendant, within the period of limitation, the court below ought to have taken a lenient view and allowed that application. Since the reason stated in the affidavit filed in support of I.A.No.1534 of 2018 was that, on 19.09.2018, the appellant could not appear before court to give necessary instructions to his counsel for cross examination of the plaintiffs, since he was laid up due to viral fever, the Sub Court ought not to dismissed the application filed under Order IX Rule 13 of the Code of FAO No.84 of 2021 13 Civil Procedure, well within the period of limitation, on the ground of non-production of any medical records. 18. In such circumstances, this appeal is allowed by setting aside the order dated 08.06.2020 in I.A.No.1534 of 2018 in O.S.No.13 of 2016. Consequently, the _ex parte_ decree dated 19.09.2018 in O.S.No.13 of 2016 is set aside, thereby O.S.No.13 of 2016 is restored to file.” 16. In view of the judgment dated 24.11.2021 in F.A.O.No.70 of 2021, this appeal is also allowed, by setting aside the order dated 08.06.2020 in I.A.No.1535 of 2018 in O.S.No.13 of 2016, thereby allowing that interlocutory application as prayed for. The Sub Court, Chavakkad shall finally dispose of O.S.No.13 of 2016, as expeditiously as possible, at any rate, within a period of four months from the date of production of a certified copy of this judgment. **Sd/-** ## **ANIL K. NARENDRAN JUDGE** **Sd/-** **P.G. AJITHKUMAR JUDGE** DCS/13.06.2022