Sunilkumar v. Manoj

# **`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 8[TH] DAY OF JUNE 2023/18TH JYAISHTA, 1945 ``` ``` FAO NO.31 OF 2017 ``` ``` AGAINST THE ORDER DATED 08.04.2016 IN I.A.NOS.2154 AND 2155 OF 2015 IN OS NO.536 OF 2012 OF ADDITIONAL SUB COURT, IRINJALA- KUDA ``` ## **`APPELLANT/S:`** ``` SUNILKUMAR, AGED 44 YEARS, ``` ``` S/O.EDATHIPARAMBIL VENUGOPAL, IRINJALAKUDA DESOM/VILLAGE, CHANDAPPURA ROAD, MUKUNDAPURAM TALUK. ``` ``` BY ADV SRI.RAJESH CHAKYAT ``` ``` RESPONDENT/S: ``` ``` MANOJ, AGED 46 YEARS S/O.BHARATHALAYATHIL RAVEENDRANADHAN NAIR, CHENGAMA- NAD WEST DESOM, CHENGAMANAD VILLAGE, ALUVA TALUK- 683 101. ``` ``` BY ADVS. SRI.C.R.REGHUNATHAN SRI.M.V.ASHIM ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ``` ``` ON 08.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` FAO No. 31 of 2017 2 ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellant is the defendant in O.S.No.536 of 2012 on the file of the Additional Sub Court, Irinjalakuda, which was one filed by the respondent herein-plaintiff for realisation of sum of Rs.4 lakhs from the defendant. The suit was originally listed for trial on 12.08.2014. On that day, the learned counsel for the defendant filed an interlocutory application stating that he could not get instructions from the defendant, since the defendant returned from abroad only on 11.08.2014. Then the case was adjourned. On 14.08.2014, the learned counsel for the defendant submitted that the defendant is hospitalized due to cardiac issues. Then the case was adjourned to 27.08.2014 and the defendant was directed to produce medical certificate. On 27.08.2014, the learned counsel for the defendant reported no instructions. Hence the defendant was set _ex parte_ and an _ex parte_ decree was passed. 2. Seeking an order to set aside the _ex parte_ decree in O.S.No.536 of 2012, the defendant filed I.A.No.2155 of 2015, invoking the provisions under Order IX Rule 13 of the Code of Civil Procedure, 1908, which was one supported by I.A.No.2154 of 2015, invoking the provisions under Section 5 of the Limitation Act, 1963 to condone the delay of 312 days in filing the former application. The FAO No. 31 of 2017 3 respondent-plaintiff filed objection in both the interlocutory applications, opposing the reliefs sought for. 3. Before the court below the appellant-defendant was examined as PW1. A notarized copy of the passport of the defendant was marked as Ext.P1. After considering the rival contentions, the court below by a common order dated 08.04.2016, which is impugned in this appeal, dismissed both the interlocutory applications stating that there is no sufficient cause for non-appearance of the defendant in court when O.S.No.536 of 2012 was listed for trial. Feeling aggrieved, the appellant is before this Court in this appeal invoking the provisions under Order XLIII, Rule 1(d) of the Code of Civil Procedure. 4. This appeal is one filed along with C.M.Application No.125 of 2017 to condone the delay of 30 days, which was condoned by the order dated 02.01.2022, on payment of a cost of Rs.1,000/-. By order dated 01.06.2023 in I.A.No.1 of 2023, the appellant was permitted to pay cost, in terms of the order dated 02.11.2022, by remitting the same before the High Court Legal Service Committee on 01.06.2023. 5. Heard the learned counsel for the appellant-defendant and also the learned counsel for the respondent-plaintiff. 6. The learned counsel for the appellant-defendant would submit that the appellant has already paid cost in terms of the order FAO No. 31 of 2017 4 of this court dated 02.11.2022. The defendant has shown sufficient cause for condonation of delay of 312 days in filing the application to set aside the _ex parte_ decree in O.S.No.536 of 2012 and also for the absence of the defendant on the date on which he was set _ex parte_ . Without properly appreciating the oral testimony of the defendant as PW1 and the document marked as Ext.B1, which is a notarized copy of his passport, the court below dismissed both the interlocutory applications by the order dated 08.04.2016. 7. Per contra, the learned counsel for the respondent-plaintiff would contend that, in the absence of sufficient cause for condonation of delay and for the absence of the defendant in court on the date on which he was set _ex parte_ , the court below dismissed both the interlocutory applications. The said order dated 08.04.2016 warrants no interference in this appeal. The learned counsel would also point out that after the _ex parte_ decree, the defendant came to India and stayed in his native place on different occasions. 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 FAO No. 31 of 2017 5 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 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-atwill 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** FAO No. 31 of 2017 6 **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. ## 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-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 FAO No. 31 of 2017 7 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 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. FAO No. 31 of 2017 8 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.” 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 base of individual philosophy which is basically subjective. Para.22 of the judgment reads thus; FAO No. 31 of 2017 9 “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 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 nonserious 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 FAO No. 31 of 2017 10 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. 14. In the instant case, the extent of delay in filing the application to set aside the _ex parte_ decree is around 312 days. The plaintiff is the brother-in-law of the appellant-defendant. The case of the defendant as PW1 is that when the suit was included in the list for evidence, he could not appear in court since he was undergoing treatment for heart ailment and breathing disorder. It was thereafter he had to go to Gulf in connection with his business. Though the explanation offered by the defendant for his absence on the date on which he was set _ex parte_ and for the delay in filing the application for setting aside the _ex parte_ decree are not fully satisfactory, having considered the submissions made by the learned counsel on both sides, we find that, taking a lenient view, the aforesaid interlocutory applications can be allowed by setting aside the impugned order dated 08.04.2016 on payment of cost to the respondent-plaintiff. FAO No. 31 of 2017 11 In such circumstances, this appeal is allowed on payment of a cost of Rs.5,000/- (Rupees Five thousand only) to the respondentplaintiff, within a period of two weeks from the date of receipt of a certified copy of this judgment, in which event, the impugned order dated 08.04.2016 will stand set aside and I.A.Nos.2154 of 2015 and 2155 of 2015 in O.S.No.536 of 2012 on the file of the Additional Sub Court, Irinjalakuda will stand allowed, thereby setting aside the _ex parte_ decree dated 27.08.2014 in that suit, after condoning the delay of 312 days in filing the application to set aside the _ex parte_ decree. Thereafter, the court below shall proceed with O.S.No.536 of 2012, which is restored to file, and dispose of the same, as expeditiously as possible, at any rate, within a period of three months. Both parties shall appear before the court below on **26.06.2023** . Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** Dxy