T.K. Rajesh v. T.K. Sasidharan 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 MONDAY, THE 21[ST] DAY OF FEBRUARY 2022 / 2ND PHALGUNA,** ## **1943** ## **FAO NO. 150 OF 2017** **AGAINST THE ORDER DATED 07.06.2017 IN I.A.NO.2028 OF 2015 IN O.S.NO.733 OF 2008 ON THE FILE OF THE II ADDITIONAL SUB COURT, ERNAKULAM** ## **APPELLANT:** **T.K. RAJESH AGED 45 YEARS, S/O LATE V.K.KARUPPAN AND LATE AMBUJAKSHY,RESIDING AT THEKKANAPPILLY HOUSE,VADUTHALA P.O., VADUTHALA DESOM,CHERANELLORE VILLAGE, KANAYANNUR TALUK. 682023.** **BY ADV SRI.MATHEW KURIAKOSE** ## **RESPONDENTS:** **1 T.K. SASIDHARAN AGED 71 YEARS, S/O LATE V.K.KARUPPAN AND LATE AMBUJAKSHY,RESIDING AT HOUSE NO.46/70, TRIPTHI, PULIPARAMBIL HOUSE,VADUTHALA P.O., VADUTHALA DESOM,CHERANELLORE VILLAGE, KANAYANNUR TALUK. 682023. 2 LALITHA AGED 73 YEARS,D/O LATE V.K.KARUPPAN AND LATE AMBUJAKSHY AND W/O SUDHAKARAN, RESIDING AT MATHUKAPILLY HOUSE, EDAPPALLY P.O, KALAMASSERY, EDAPPALLY NORTH VILLAGE, KANAYANNUR TALUK, REPRESENTED BY HER BROTHER AND POWER OF ATTORNEY HOLDER T.K.SASIDHARAN, THE 1ST RESPONDENT -682024. 3 SHEELA AGED 57 YEARS,D/O LATE V.K.KARUPPAN AND LATE AMBUJAKSHY AND W/O SUDHEER, RESIDING AT POTTATHIL HOUSE, EROOR SOUTH P.O., TRIPUNITHURA DESOM, TRIPUNITHURA VILLAGE, KANAYANNUR TALUK, REPRESENTED BY HER BROTHER AND POWER OF ATTORNEY HOLDER T.K.SASIDHARAN, THE 1ST RESPONDENT-682306.** F.A.O.No.150 of 2017 2 - **4 SABITHA** **AGED 47 YEARS,D/O LATE V.K.KARUPPAN AND LATE AMBUJAKSHY AND W/O T.K.RADHAKRISHNAN, RESIDING AT THAMARASSERY HOUSE, EROOR P.O, EROOR DESOM, NADAMA VILLAGE, KANAYANNUR TALUK, REPRESENTED BY HER BROTHER AND POWER OF ATTORNEY HOLDER T.K.SASIDHARAN, THE 1ST RESPONDENT-682306.** - **5 T.K. ANITHA** **AGED 61 YEARS,D/O LATE V.K.KARUPPAN AND LATE AMBUJAKSHY AND W/O SHAJI, RESIDING AT THARAYIL HOUSE, NEERKODE, (VIA), ALANGAD ALANGAD VILLAGE, PARUR TALUK, ERNAKULAM DISTRICT-683511.** - **6 T.K. GIRIJA** **AGED 68 YEARS,D/O LATE V.K.KARUPPAN AND LATE AMBUJAKSHY,W/O LATE NALINAKSHAN, RESIDING AT MUNDAKAPADATHU HOUSE, PERUMPADANNA, NORTH PARUR, ERNAKULAM DISTRICT, REPRESENTED BY HER SON VIPIN, AGED 26 YEARS, S/O LATE NALINAKSHAN, RESIDING AT MUNDAKAPADATHU HOUSE, PERUMPADANNA, NORTH PARUR, ERNAKULAM DISTRICT. 683513. BY ADVS.** **A. RAJAGOPALAN SRI.A.BALAGOPALAN SRI.M.S.IMTHIYAZ AHAMMED SMT.P.SEENA** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 21.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** F.A.O.No.150 of 2017 3 ## **JUDGMENT** ## **Anil K. Narendran, J.** The 1[st] defendant in O.S.No.733 of 2008 on the file of the II[nd] Additional Sub Court, Ernakulam, is the appellant in this appeal, which is one filed under Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908, challenging the order dated 07.06.2017 of the court below in I.A.No.2027 of 2015 in O.S.No.733 of 2008 and also the consequential order dated 07.06.2017 in I.A.No.2028 of 2015 in O.S.No.733 of 2008. 2. On 25.09.2017, when this appeal came up for consideration, this Court admitted the matter on file. Respondents 1 to 4 entered appearance through their counsel. Notice by special messenger was ordered to respondents 5 and 6. In this appeal, this Court passed an order dated 25.09.2017, which reads thus; “We also deem it appropriate, having regard to the nature of the disputes arising for consideration, to direct all the parties to this appeal, namely, the plaintiffs and the defendants in O.S.No.733 of 2008 on the file of the Court of the II Additional Subordinate Judge of Ernakulam to be present in person in this Court at 10.15 a.m., on 05.10.2017 for the purpose of ascertaining F.A.O.No.150 of 2017 4 whether an out of court settlement is possible. We accordingly direct the parties to be present in person int his Court at 10.15 a.m., on 05.10.2017. A copy of this order shall be communicated to all the parties along with the notice. The messenger shall ensure that notice to the 6[th] respondent is served on her son, M.N. Jipin, who has been appointed as her guardian. Registry to call for the records in the meanwhile.” 3. The said order was followed by another order dated 05.10.2017, which reads thus; “Read order dated 25.09.2017. We had, in the said order, directed the parties to this appeal to be present in this Court today for the purpose of ascertaining whether an out of court settlement is possible. When the matter was taken up today, the appellant, respondents 1, 5 and the son of the 6[th] respondent are present. The 1[st] respondent submits that he has been authorised by respondents 2, 3 and 4 herein to speak on their behalf if a mediation settlement is attempted to. We have interacted with the parties present before us and we are, _prima facie_ , of the opinion that if they are offered an opportunity to speak to each other, an out of court settlement may be possible. In such circumstances, taking note of the submissions made by the parties present before us, we refer the parties to mediation. The appellant, respondents 1, 5 F.A.O.No.150 of 2017 5 and the son of the 6[th] respondent are directed to be present before the Nodal Officer, mediation Centre (High Court of Kerala), immediately for mediation talks” 4. By the judgment dated 02.08.2019, this appeal was allowed and the court below was directed to consider the applications on merit. That said order was reviewed in R.P.No.796 of 2019 filed by respondents 1 to 4, by an order dated 01.10.2019. Paragraph 5 of that order reads thus; “5. After hearing the learned counsel on both sides, we are of the view that there is an error apparent on the face of the judgment to the effect that this Court did not consider the nature of delivery said to have been taken by the review petitioners. Moreover, reason for opposing the delay condonation was also seriously not considered in the absence of any contest by the review petitioners at the time of hearing the appeal. Therefore, we review the judgment dated 02.08.2019 and recall the judgment. The matter shall be placed before the appropriate Bench for consideration.” 5. Heard the learned counsel for the appellant/1[st] defendant, the learned counsel for respondents 1 to 4/plaintiffs and also the learned counsel for respondents 5 and 6/defendants 2 and 3. 6. The issue that arises for consideration in this appeal F.A.O.No.150 of 2017 6 is as to whether any interference is warranted on the impugned orders dated 07.06.2017 of the court below in I.A.Nos.2027 of 2015 and 2028 of 2015 in O.S.No.733 of 2008. 7. The appellant is the 1[st] defendant in O.S.No.733 of 2008, a suit for partition and injunction filed by respondents 1 to 4 herein-plaintiffs, for partition of plaint schedule property with residential building, which originally belongs to Late V.V. Karuppan, the father of the plaintiffs and defendants. The further relief sought for was to restrain defendants 1 and 2 from alienating or encumbering the property or building to strangers. Respondents 5 and 6 in this appeal are defendants 2 and 3 in that suit. In O.S.No.733 of 2008, ex parte preliminary decree and final decree were passed against the 1[st] defendant. When he came to know about the ex parte decree, an application was filed to set aside the same, along with an application to condone the delay of 2176 days. The court below dismissed those applications. 8. The application, i.e., I.A.No.2028 of 2015, filed by the 1[st] defendant, invoking the provisions under Order IX Rule F.A.O.No.150 of 2017 7 13 of the Code of Civil Procedure, 1908, seeking an order to set aside the preliminary decree dated 30.05.2009 and the final decree dated 19.07.2010 in O.S.No.733 of 2008, was accompanied by I.A.No.2027 of 2015, an application under Section 5 of the Limitation Act, 1963, for condonation of delay of 2176 days. The plaintiffs filed counter, opposing the reliefs sought for in those applications. The court below by the impugned order dated 07.06.2017 dismissed I.A.No.2027 of 2015 on the ground that no sufficient ground has been brought out in the affidavit filed in support of I.A.No.2027 of 2015 to condone the delay of 2176 days in filing I.A.No.2028 of 2015. The aforesaid order of the court below reads thus; “Heard. The case of the petitioner is that he had entrusted the case to the 2[nd] defendant. But due to the latches of D2, the petitioner could not present his case properly. It is seen that there is a delay of 2176 days in filing this I.A. It is also seen that almost all the parties have taken delivery of their respective shares. A perusal of the affidavit, shows that no sufficient ground has been brought forth to condone the delay. Hence, delay is not condonded. I.A. is hence dismissed.” F.A.O.No.150 of 2017 8 9. On the ground of dismissal of I.A.No.2027 of 2015, the court below dismissed I.A.No.2028 of 2015, by another order dated 07.06.2017. 10. The learned counsel for the appellant/1[st] defendant would contend that, though the extent of delay is 2176 days, the court below was not justified in rejecting the aforesaid applications, by passing a cryptic order, which is impugned in this appeal. Therefore, interference on that order is warranted, invoking the appellate jurisdiction of this Court under Order XLIII Rule 1(d) of the Code of Civil Procedure. 11. Per contra, the learned counsel for respondents 1 to 4/plaintiffs would contend that, in the affidavit filed in support of I.A.No.2027 of 2015, the appellant/1[st] defendant has not shown sufficient cause for condonation of delay of 2176 days. Therefore, the court below cannot be found fault with in rejecting the aforesaid interlocutory applications, by the impugned orders. 12. 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 F.A.O.No.150 of 2017 9 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 ascertaining or computing the prescribed period may be sufficient cause within the meaning of this Section. 13. 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 F.A.O.No.150 of 2017 10 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. 14. 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. 15. 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 F.A.O.No.150 of 2017 11 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, justiceoriented, 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. F.A.O.No.150 of 2017 12 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. 21.10 If the explanation offered is concocted or the grounds urged in the application are fanciful, the F.A.O.No.150 of 2017 13 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.” 16. 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 F.A.O.No.150 of 2017 14 manner on the base 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 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.” 17. In **Rafeek and another v. K. Kamarudeen and** **another [2021 (4) KHC 34 : (2021) 2 RCR (Rent) 223 :** F.A.O.No.150 of 2017 15 **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 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. 18. 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 F.A.O.No.150 of 2017 16 decree was passed for an order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make 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_ F.A.O.No.150 of 2017 17 _parte_ decree. 19. 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 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. 20. 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 fixed for hearing F.A.O.No.150 of 2017 18 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 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. 21. In **Peeves Enterprises v. Muhammed Ashraf [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 F.A.O.No.150 of 2017 19 adequate costs for the loss of time and the inconvenience caused to him. But any such condition shall not be too onerous. 22. 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 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 F.A.O.No.150 of 2017 20 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 performance and also the extent of delay, etc. 23. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that a F.A.O.No.150 of 2017 21 cryptic order like the one passed by the court below, which is one dated 07.06.2017, whereby I.A.No.2027 of 2015 filed by the appellant/1[st] defendant to condone the delay of 2176 days stands dismissed, so also I.A.No.2028 of 2015 filed seeking an order to set aside the ex parte decree in O.S.No.733 of 2008, cannot be sustained in law. 24. In the result, for the aforesaid reason, this appeal is allowed by setting aside the impugned orders dated 07.06.2017 in I.A.Nos.2027 and 2028 of 2015 in O.S.No.733 of 2008 of the Sub Court, Ernakulam, and by directing the said court to reconsider the aforesaid applications, taking note of the law laid down in the decisions referred to supra, and pass a reasoned order, after adverting to the legal and factual contentions raised by both sides. The court below shall permit both sides to adduce oral as well as documentary evidence to substantiate their contentions. The court below shall pass orders on those interlocutory applications, as directed above, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment. F.A.O.No.150 of 2017 22 Both parties shall appear before the II[nd] Additional Sub Court, Ernakulam, on **07.03.2022** . Sd/- **ANIL K. NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** **yd**