T J JACOB v Deepthimol Smitha Jose

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 9[TH] DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945** **OP(C) NO. 1036 OF 2023** **R.P.NO.76/2020 & I.A.NO.1/2020 IN OS 962/2015 OF PRINCIPAL** **MUNSIFF COURT, KOLLAM** ## **PETITIONER/RESPONDENT/DEFENDANT:** **T J JACOB, AGED 71 YEARS S/O JOSEPH, CHEMPAKAMVILA, EDAKKARA NAGAR 81, KANJIRACODE, KUNDARA, PIN - 695013 BY ADVS. V.PREMCHAND HALIYA T.P.** ## **RESPONDENT/PETITIONER/PLAINTIFF:** **DEEPTHIMOL SMITHA JOSE, AGED 41 YEARS D/O T J MARIAMMA, RESIDING AT KALLUMADATHIL, SAWHRIDA NAGAR, AA9, KARIPPAISUNDARAGIRI ROAD, KALAMASSERY, ALUVA, FROM CHEMPAKAMVILA, EDAKKARA NAGAR, KANJIRAMCODE, KUNDARA., PIN - 683104 BY ADVS. MOHAN LAL B ASWIN V. NAIR(K/1019/2017) FERMIN KHADEEJA N.V.(K/001535/2023) JAYAPRABHA ARJUN(K/001757/2023)** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09.02.2024, ALONG WITH OP(C).NOS.1062/2023 AND 1078/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP(C) NO. 1036, 1062 & 1078 OF 2023** -: 2 :- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 9[TH] DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945** **OP(C) NO. 1062 OF 2023** **RP 77/2020 IN O.S.NO.656/2015 OF PRINCIPAL MUNSIFF COURT,** ## **KOLLAM** ## **PETITIONER/RESPONDENT/PLAINTIFF:** **T.J JACOB, AGED 71 YEARS, S/O JOSEPH, CHEMBAKAMVILLA, EDAKKARA NAGAR 81, KANJIRACODE, KUNDARA, PIN-695013.** **BY ADVS. V.PREMCHAND HALIYA T.P.** ## **RESPONDENTS/PETITIONERS/DEFENDANTS:** **1 DEEPTHIMOL SMITHA JOSE AGED 41 YEARS D/O MARIAMMA, KALLUMADATHIL SWAHIRA NAGAR, AA9, KARIPPASUNDARAGIRI ROAD, KALAMASSERY, ALUVA, PIN-683104. FROM CHEMPAKAMVILA, EDAKKARA NAGAR, KANJIRAMCODU, KUNDARA 2 TOMY JOSEPH AGED 44 YEARS S/O JOSEPH PALILI, KALLUMADATHIL SWAHIRA NAGAR, AA9, KARIPPASUNDARAGIRI ROAD, KALAMASSERY, ALUVA, FROM CHEMPAKAMVILA, EDAKKARA NAGAR, KANJIRAMCODU, KUNDARA., PIN - 683104 BY ADVS. MOHAN LAL B ASWIN V. NAIR(K/1019/2017)** **OP(C) NO. 1036, 1062 & 1078 OF 2023** -: 3 :- **FERMIN KHADEEJA N.V.(K/001535/2023) ABIJITH M.(K/1226/2022) JAYAPRABHA ARJUN(K/001757/2023)** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09.02.2024, ALONG WITH OP(C).1036/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP(C) NO. 1036, 1062 & 1078 OF 2023** -: 4 :- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 9[TH] DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945** **OP(C) NO. 1078 OF 2023** **R.P.NO.75/2020 & I.A.NO.1/2020 IN OS 963/2015 OF PRINCIPAL** **MUNSIFF COURT , KOLLAM** ## **PETITIONER/2ND RESPONDENT/2 ND DEFENDANT:** **T J JACOB, AGED 71 YEARS S/O JOSEPH, CHEMPAKAMVILA, EDAKKARA NAGAR 81, KANJIRACODE, KUNDARA,KOLLAM DISTRICT, PIN - 695013** **BY ADVS. V.PREMCHAND HALIYA T.P.** ## **RESPONDENTS/PETITIONER/RESPONDENTS 1, 3 TO 5, PLAINTIFF,** **DEFENDANTS 1, 3 TO 5:** - **1 DEEPTHIMOL SMITHA JOSE, AGED 41 YEARS** **D/O T J MARIAMMA, RESIDING AT KALLUMADATHIL, SAWHRIDA NAGAR, AA9, KARIPPAISUNDARAGIRI ROAD, KALAMASSERY, ALUVA, FROM CHEMPAKAMVILA, EDAKKARA NAGAR,KANJIRAMCODE, KUNDARA., PIN - 683104** - **2 T J BENAJAMIN S/O T V JOSEPH, CHEMPANVILA, HOUSE NO 197, MOOLAVILA NAGAR, KODARAM LANE, VANCHIYOOR P O, THIRUVANANTHAPURAM, PIN - 695035** - **3 JOMON MANOJ JOSE, S/O T J MARIAMMA,KURISSUMOOTTIL,** ## **OP(C) NO. 1036, 1062 & 1078 OF 2023** - -: 5 :- **PERUMPALLOOR P O, MUVATTUPUZHA, ERNAKULAM, PIN - 686673** - **4 ANIMON BESOJ JOSE,** **S/O T J MARIAMMA,KURISSUMOOTTIL, PERUMPALLOOR P O, MUVATTUPUZHA, ERNAKULAM, PIN - 686673** - **5 PREETHI MOL DOLLY JOSE, D/O T J MARIAMMA,KURISSUMOOTTIL, PERUMPALLOOR P O, MUVATTUPUZHA, ERNAKULAM, PIN - 686673** **BY ADVS.** **MOHAN LAL B ASWIN V. NAIR(K/1019/2017) FERMIN KHADEEJA N.V.(K/001535/2023)** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09.02.2024, ALONG WITH OP(C).1036/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP(C) NO. 1036, 1062 & 1078 OF 2023** -: 6 :- ## **C O M M O N J U D G M E N T** These three Original Petitions are preferred from orders produced at Ext.P5 in all the three Original Petitions. O.P.No.1062 of 2023 is taken as the lead case, as arguments were specifically addressed in that case. As per Ext.P5 order therein, an ex-parte order was set aside, after condoning the delay of 711 days. The petitioner, who is the plaintiff in that suit, O.S.No.656 of 2015, is aggrieved by the same. 2. O.P.Ns.1036 & 1078 of 2023 pertains to two suits, O.S.Nos.962 of 2015 and 963 of 2015, both preferred by the respondent herein. The suits were dismissed for default. There, a restoration application has been allowed, after condoning the delay of 711 days in O.P.No.1036 of 2023 and 507 days in O.P.No.1078 of 2023. Ext.P5 orders in ## **OP(C) NO. 1036, 1062 & 1078 OF 2023** -: 7 :- both the suits are under challenge in the said two original petitions. 3. Heard the learned counsel for the petitioner in all the three cases and the respondents. 4. Learned counsel for the petitioner submits that the case was posted for evidence on 10.09.2018, on which day itself, proof affidavit was filed, along with 37 documents. The plaintiff in O.S.No.656 of 2015 preferred an interlocutory application as I.A.No.4244 of 2018 to remove the suit from the list, which was allowed and the case was adjourned to 07.11.2018. The date was pronounced in the open court, wherefore the respondent/defendant in the said suit was aware of the adjourned date. However, she did not choose to appear. In the result, she was set exparte and an ex-parte decree was passed, as per ## **OP(C) NO. 1036, 1062 & 1078 OF 2023** -: 8 :- Ext.P3. As per the application to set aside the ex-parte decree, the reason urged is that the lawyer appearing for the respondents herein in that suit O.S.No.656 of 2015 did not inform her about the matter being scheduled for trial, with the result, she could not be present and the suit was decreed ex-parte. Even after the ex-parte decree being passed, the matter was not informed and the respondent came to know about the exparte decree only on 18.11.2020. Here, the petitioner's counsel espouses two aspects; the first is that on 10.09.2018, an application was preferred to remove the case from the list, wherefore the respondent's contention that she was not aware of the suit being scheduled for trial on that date, is per se erroneous. The second aspect is that no evidence, whatsoever, has been adduced in support of the grounds urged in the petition; nor was any affidavit preferred ## **OP(C) NO. 1036, 1062 & 1078 OF 2023** -: 9 :- by the counsel appearing for the respondent to establish the fact that the matter was not informed to the respondent. 5. Similar is the contention with respect to two other O.Ps, wherein the suits preferred by the respondent herein were restored after condoning the delay 711 days and 507 days respectively. For the same set of reasons as urged in O.P.No.1062 of 2023, the delay condoned is bad in law, is the submission made by the counsel. 6. Refuting the above submissions, learned counsel for the respondent would submit that Ext.P5 orders in all the Original Petitions are self-speaking, after considering all the relevant aspects, which warrants no interference. It is also pointed out that Ext.P5 orders in all the suits were passed on 19.02.2022. However, the ## **OP(C) NO. 1036, 1062 & 1078 OF 2023** -: 10 :- original petitions were filed after lapse of 1 year and 3 months, on 22.05.2022. Learned counsel also submitted that the petitions for restoration, as also the petition to set aside the ex-parte decree, were allowed subject to payment of cost of Rs.2500/- each. 7. Having heard the learned counsel appearing on both sides, this Court is of the view that no serious infirmity or legality can be attached to Ext.P5 orders, which are under challenge in all the three original petitions, except in respect of the quantum of cost awarded, which this Court will address later. 8. Learned counsel for the petitioner relied upon a Division Bench judgment of this Court in _**Anandavalliyamma and Others v. Kerala Housing Finance Ltd., Kozhencherry**_ [2023 (2) KLT 556] ## **OP(C) NO. 1036, 1062 & 1078 OF 2023** -: 11 :- |wherein a judgment of the Hon'ble Supreme Court| |---| |in<br>**_Esha Bhattacharjee v. Raghunathpur Nafar_**| |**_Academy_**<br>[2013 (12) SCC 649] is seen relied on.| |Based on <br>**Esha Bhattacharjee**<br>, the learned would| |argue that an application for condonation of| |delay cannot be considered in a routine and| |haphazard manner, on the pre-conceived notion| |that the delay should necessarily be condoned,| |since law promotes judgments on merits. The| |various principles that are culled out in <br>**Esha**| |**Bhattacharjee**<br>were specifically brought to the| |notice of this Court. This Court notice that| |after reckoning the dictum laid down in <br>**Esha**| |**Bhattacharjee**<br>, the Division Bench of this Court| |has chosen to condone the delay of 931 days in| |preferring an application to set aside the ex-| |parte decree in<br>**Anandavalliyamma**<br>(supra). In the| |given facts also, this Court is of the opinion| |that the principles laid down in<br>**Esha**| ## **OP(C) NO. 1036, 1062 & 1078 OF 2023** -: 12 :- |**Bhattacharjee**<br>has not been violated in Ext.P5| |---| |orders. As already indicated, the delay sought to| |be condoned is 711 days in O.P.Nos.1062 and 1036| |of 2023, whereas it is 507 in O.P.No.1078 of| |2023. Having pursued the application to condone| |the delay, it cannot be said that the said| |application lacks any<br>_bona fides_<br>imputable to the| |respondent. <br>The approach made in Ext.P5 orders| |permits of no indication, whatsoever, that the| |delay has been condoned treating it as a non-| |serious matter, and this Court cannot find any| |lackadaisical propensity exhibited in those| |orders.<br>Reasons stated in an application to| |condone the delay is that the factum of the| |matter being listed was not informed to the| |respondent by the counsel concerned. It is true| |that the counsel was not examined, and that no| |specific evidence has been adduced in support of| |that allegation. However, that, by itself, is no| ## **OP(C) NO. 1036, 1062 & 1078 OF 2023** -: 13 :- reason to frown upon Ext.P5 orders in the three Original Petitions. Even in **Esha Bhattacharjee,** the basic premise upheld by the Hon'ble Supreme Court is that an application for condonation of delay should receive a liberal, pragmatic, justice-oriented and non-pedantic approach, since the courts are not supposed to legalise injustice, but are obliged to remove injustice. It is true that the matter requires strict approach when the delay is inordinate and a liberal one when the delay is for a short period. However, the strict approach mentioned therein cannot be understood to turn the clock back to the legal position prevailing prior to the celebrated decision of the Hon'ble Supreme Court ## _**Collector, Land Acquisition, Anantnag & Another**_ _**vs. Mst. Katiji & Others**_ [(1987) 2 SCC 107], which mandated explanation for each day's delay. This Court notice that the respondent has offered ## **OP(C) NO. 1036, 1062 & 1078 OF 2023** -: 14 :- a plausible explanation for the delay, which constitutes sufficient cause. 9. This Court, in exercise of its jurisdiction under Article 227 of the Constitution of India, is not supposed to intervene for correction of mere errors, if any, in the order. Merely because a different view could have been possible is no ground to interfere with the impugned orders. 10. However, this Court notice that the cost awarded by the learned Munsiff is on the lower side, having regard to the duration of the delay sought to be condoned. The cost which has been imposed would not mitigate the inconvenience caused to the petitioner herein. In one case, his suit was decreed ex-parte, and in two others, the suit as against him was dismissed. In order to square up the inconvenience caused to the ## **OP(C) NO. 1036, 1062 & 1078 OF 2023** -: 15 :- petitioner, this Court directs the respondents to pay cost at the rate of Rs.5,000/- (Rupees five thousand only) in each of the three cases. Subject to the above modification, the orders impugned are not interfered with. These Original Petitions (Civil) are disposed of accordingly. Sd/- **C. JAYACHANDRAN, JUDGE** AS ## **OP(C) NO. 1036, 1062 & 1078 OF 2023** -: 16 :- ## **APPENDIX OF OP(C) 1036/2023** |**PETITIONER'S**|**EXHIBITS:**| |---|---| |**EXHIBIT-P1**|**A TRUE COPY OF THE PLAINT DATED**| ||**12.10.2015 IN OS 962 OF 2015BEFORE THE**| ||**MUNSIFF COURT, KOLLAM**| |**EXHIBIT-P2**|**A TRUE COPY OF THE WRITTEN STATEMENT IN**| ||**OS 962 OF 2015BEFORE THE MUNSIFF COURT,**| ||**KOLLAM DATED 12-1-2016**| |**EXHIBIT-P3**|**A TRUE COPY OF THE OBJECTION DATED**| ||**03.03.2021 IA NO.2/2020 IN OS NO.**| ||**962/2015 BEFORE THE MUNSIFF COURT,**| ||**KOLLAM**| |**EXHIBIT-P4**|**A TRUE COPY OF THE OBJECTION DATED**| ||**05.01.2021 FILED BY THE PETITIONER IN**| ||**IA NO.76/2020 IN OS NO. 962/2015 BEFORE**| ||**THE MUNSIFF COURT, KOLLAM**| |**EXHIBIT-P5**|**A TRUE COPY OF THE COMMON ORDER DATED**| ||**19.02.2022 IA NO.76/2020 IN OS NO.**| ||**962/2015 BEFORE THE PRINCIPAL MUNSIFF**| ||**COURT, KOLLAM**| ## **OP(C) NO. 1036, 1062 & 1078 OF 2023** -: 17 :- ## **APPENDIX OF OP(C) 1062/2023** |**PETITIONER'S**|**EXHIBITS:**| |---|---| |**EXHIBIT-P1**|**A TRUE COPY OF THE PLAINT DATED**| ||**06.07.2015 IN OS 656 OF 2015 BEFORE THE**| ||**MUNSIFF COURT, KOLLAM**| |**EXHIBIT-P2**|**A TRUE COPY OF THE WRITTEN STATEMENT**| ||**DATED 10.09.2015 IN OS 656 OF 2015**| ||**BEFORE THE MUNSIFF COURT, KOLLAM**| |**EXHIBIT-P3**|**A TRUE COPY OF THE APPLICATION DATED**| ||**27.11.2020 IN R.P.NO.77/2020 IN OS NO.**| ||**656/2015 BEFORE THE MUNSIFF COURT,**| ||**KOLLAM**| |**EXHIBIT-P4**|**A TRUE COPY OF THE OBJECTION DATED 11-**| ||**2-20211 FILED BY THE PETITIONER IN R.P.**| ||**NO.77/2020 IN OS NO. 656/2015 BEFORE**| ||**THE MUNSIFF COURT, KOLLAM**| |**EXHIBIT-P5**|**A TRUE COPY OF THE COMMON ORDER DATED**| ||**19.02.2022 IN R.P.NO.77/2020 IN**| ||**O.S.NO.656/2015 BEFORE THE MUNSIFF'S**| ||**COURT, KOLLAM**| ## **OP(C) NO. 1036, 1062 & 1078 OF 2023** -: 18 :- ## **APPENDIX OF OP(C) 1078/2023** |**PETITIONER'S**|**EXHIBITS:**| |---|---| |**EXHIBIT-P1**|**A TRUE COPY OF THE PLAINT DATED**| ||**12.10.2015 IN OS 963 OF 2015 BEFORE THE**| ||**MUNSIFF COURT, KOLLAM**| |**EXHIBIT-P2**|**A TRUE COPY OF THE WRITTEN STATEMENT**| ||**DATED 12.01.2016 IN OS 963 OF 2015**| ||**BEFORE THE MUNSIFF COURT, KOLLAM**| |**EXHIBIT-P3**|**A TRUE COPY OF THE APPLICATION DATED**| ||**27.11.2020 ( RP NO.75/2020 IN OS NO.**| ||**963/2015 BEFORE THE MUNSIFF COURT,**| ||**KOLLAM**| |**EXHIBIT-P4**|**A TRUE COPY OF THE OBJECTION DATED**| ||**03.03.2021 FILED BY THE PETITIONER ( RP**| ||**NO.75/2020 IN OS NO. 963/2015 BEFORE**| ||**THE MUNSIFF COURT, KOLLAM**| |**EXHIBIT-P5**|**A TRUE COPY OF THE COMMON ORDER DATED**| ||**19.02.2022 IN R.P.NO.75/2020 IN**| ||**O.S.NO.963/20215BEFORE THE PRINCIPAL**| ||**MUNSIFF'S COURT KOLLAM**|