SURENDRANATHAN PILLAI AND OTHERS v. SASIDHARAN PILLAI AND OTHERS

## **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 10[TH] DAY OF AUGUST 2022 / 19TH SRAVANA, 1944 F.A.O.NO. 224 OF 2018** **AGAINST THE ORDER DATED 31.07.2018 IN I.A.NO.143 & 144 OF 2018 IN O.S.NO.322 OF 2010 OF THE SUB COURT, KOTTARAKARA** ## **APPELLANTS/PETITIONERS/PLAINTIFFS:** - **1 SURENDRANATHAN PILLAI, AGED 75 YEARS,** - **EDATHARA VEEDU, ANAYAM, ANAKKOTTOOR P.O., NEDUVATHOOR VILLAGE.** - **2 N.SARACHANDRA BABU, AGED 50 YEARS, S/O.NARAYANA PILLAI, ARUNODAYAM, ANAYAM, ANAKKOTTOOR P.O., NEDUVATHOOR VILLAGE, KOTTARAKARA TALUK.** - **3 N.JAYACHANDRAN AGED 48 YEARS, S/O.NARAYANA PILLAI, EDATHARA LEKSHMI BHAVAN, ANAYAM, ANAKKOTTOOR P.O., NEDUVATHOOR VILLAGE, KOTTARAKARA TALUK.** - **4 N.HARICHANDRA BABU AGED 46 YEARS, S/O.NARAYANA PILLAI, EDATHARA LEKSHMI BHAVAN, ANAYAM, ANAKKOTTOOR P.O., NEDUVATHOOR VILLAGE, KOTTARAKARA TALUK.** - **5 N.S.JAYARESHMI, AGED 42 YEARS, D/O.NARAYANA PILLAI, LESKHMI VILASOM, ANAKKOTTOOR P.O., NEDUVATHOOR VILLAGE, KOTTARAKARA TALUK.** - **6 N.S.JAYALEKSHMI** - **AGED 38 YEARS, D/O.NARAYANA PILLAI, LEKSHMI VILASOM, ANAKKOTTOOR P.O., NEDUVATHOOR VILLAGE, KOTTARAKARA TALUK.** **BY ADV K.V.ANIL KUMAR** 2 F.A.O.No.244 of 2018 ## **RESPONDENTS/COUNTER PETITIONERS/DEFENDANTS:** - **1 SASIDHARAN PILLAI AGED 62 YEARS, S/O.SREEDHARAN PILLAI, ROHINI, THADIKADU P.O., AERAM MURI, ANCHAL VILLAGE, PATHANAPURAM TALUK, PIN - 691 306.** - **2 RAJESH** - **AGED 47 YEARS, S/O.RAGHAVAN PILLAI, KAMALA BHAVAN, POREDOM P.O., CHADAYAMANGALAM VILLAGE, KOTTARAKARA TALUK, PIN - 691 534.** - **3 ABDUL SATHAR, AGED 62 YEARS, S/O.SHAHUL HAMEED, SAINA VILLA (SHAJI MANZIL), NILAMEL VILLAGE, KOTTARAKARA TALUK, PIN- 691 535.** - **4 KHADEEJA SATHAR, AGED 45 YEARS, W/O.ABDUL SATHAR, SAINA VILLA (SHAJI MANZIL), NILAMEL VILLAGE, KOTTARAKARA TALUK, PIN- 691 535.** - **5 ABDUL HAKKIM, AGED 62 YEARS, S/O.SHAHUL HAMEED, R.S.COTTAGE, NILAMEL VILLAGE, KOTTARAKARA TALUK, PIN - 691 535.** **BY ADVS.** **SRI.ALEXANDER GEORGE SRI.G.BHAGAVAT SINGH SRI.ANWIN SHAJ** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 10.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 F.A.O.No.244 of 2018 ## **JUDGMENT** ## Ajithkumar, J. The plaintiffs in O.S.No.322 of 2010 of the Sub Court, Kottarakkara, are the appellants. They filed I.A.Nos.143 and 144 of 2018 for condonation of delay of 17 days and to restore the suit on file, which was dismissed for default on 06.01.2018. As per the common order dated 31.07.2018, the applications were dismissed. Challenging the said order, the appellants have filed this appeal under Order XLIII, Rule 1(c) of the Code of Civil Procedure, 1908. 2. There was a delay of 32 days in filing this appeal. On 20.12.2018, notice was directed to be served on the respondents. The respondents entered appearance through their learned counsel. After hearing both sides, C.M.Appl.No.1 of 2018 was allowed on payment of cost of Rs.5,000/-. 3. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondents. 4. On 06.01.2018 when O.S.No.322 of 2010 was taken up for trial, the appellants did not turn up, and 4 F.A.O.No.244 of 2018 therefore, the suit was dismissed for default. The applications were filed stating that the appellants, who are aged persons, could not appear before the court due to ailments. A certificate issued by one Dr.K.Santhosh was produced in support of the said contention. The respondents opposed the applications by contending that the appellants purposefully avoided appearance before the court. Earlier, on four occasions the appellants avoided appearance before the court, resulting in the dismissal of the suit. Each time, the applications for restoration were allowed. On 06.01.2018, when the suit was taken up for hearing, not only did the appellants fail to appear before the court, but also their learned counsel reported no instruction. The intention of the appellants is to harass the respondents and to continue the suit as long as possible. The reasons stated by the appellants are totally insufficient. If PW1, the 3[rd] appellant, was laid up, there was no difficulty for other appellants to appear before the court. Pointing out those reasons, the respondents sought to dismiss the petitions. 5 F.A.O.No.244 of 2018 5. The 3[rd] appellant was examined as PW1. No document on the side of the appellants was received in evidence. Exts.B1 to B3 were produced by the respondents. The Sub Court, after considering the said evidence and also on perusal of the records of the suit, found that the reasons stated were insufficient to condone the delay or to restore the suit on file. Pointing out that it was the practice of the appellants not to appear before the court when the suit is posted for recording evidence and the present application is the fifth attempt to get the suit restored on file, it was dismissed holding that the appellants deserve no leniency. 6. There is no rule to guide as to when can courts record satisfaction about the sufficiency of the reason mentioned in Section 5 of the Limitation Act. It is for the court to consider in an objective way the materials before it and record its satisfaction or not about the sufficiency of the cause. Even if there have been intervals between the disabling factors, it is for the court to decide whether the person was justified in not approaching the court in time. 6 F.A.O.No.244 of 2018 ## 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 lifepurpose for the existence of the institution of Courts. 8. In **Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649]** the Apex Court summarised the principles to be followed while dealing with an application for condonation of delay and 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. 7 F.A.O.No.244 of 2018 9. In **Esha Bhattacharjee** , after summarizing 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. 10. After such discussion, the Court in **Rafeek and another v. K. Kamarudeen and another [2021 (4) KHC** **34]** held 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 and in an application filed under Section 5 of the Act, the court has to condone the delay if sufficient cause is shown. 8 F.A.O.No.244 of 2018 11. It is seen that earlier, on four occasions the suit was dismissed and each time, the suit was restored on the application of the appellants. That is one of the reasons for dismissing the present petitions. The said view of the Sub Court is incorrect since the court on finding that there was sufficient reason for the non-appearance, the suit was restored to file on such earlier occasions. The question that has to be considered now is whether there was sufficient reason for the non-appearance of the appellants on 06.01.2018. 12. Although a copy of the medical certificate was produced by the appellants in order to show that the 2[nd] appellant, PW1, fell ill thereby unable to appear before the court, it was not received in evidence. The Doctor, who issued the certificate was not examined before the court also. However, PW1 deposed about his inability to appear before the court. Besides, PW1, there are six more appellants. No reason for their non-appearance before the court has specifically been stated. Except for old age and ailment, 9 F.A.O.No.244 of 2018 nothing disabling them from appearing before the court has been specifically stated. On considering the evidence tendered by PW1, it is not able to say that the reason stated for the non-appearance of the appellants on 06.01.2018 is justifiable. Same is the position while considering the reason stated for condonation of delay of 17 days. However, considering the fact that the suit is one involving a question regarding title to immovable property, we are of the view that it is just and appropriate to allow the parties to have a decision on merits, so that there will be a quietus to the dispute between the parties. The delay is not inordinate. In **Peevees Enterprises** **v. Muhammed Asharaf [2015 (2) KLT SN 102 (120)]** after referring to the decisions of the Apex Court, including **G.P.Sreevastava v. R.K.Raizada and others [(2000) 3 SCC 54],** this Court held that,- “In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide 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.” 10 F.A.O.No.244 of 2018 13. In view of the above a lenient approach is required to be taken since the delay is for a short duration. Therefore, we allow this appeal; however, on imposing cost to re-compensate the inconvenience caused to the respondents. Accordingly, the appeal is allowed. Order of the Sub Court, Kottarakkara in I.A.Nos.143 And 144 of 2018 in O.S.No.322 of 2010 is set aside. The said petitions are allowed on payment of cost of Rs.10,000/- (Rupees ten thousand only) to the respondents. The cost shall be paid within a period of one week to the respondents. On such payment, the Sub Court, Kottarakkara will restore O.S.No.322 of 2010 to file and proceed with it in accordance with law. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr