Unnikrishnan v. Ambidevi (died) 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** **THURSDAY, THE 10[TH] DAY OF AUGUST 2023 / 19TH SRAVANA, 1945 F.A.O.NO. 282 OF 2016** **AGAINST THE COMMON ORDER DATED 06.10.2016 IN I.A.NO.1787 AND 1788 OF 2015 IN O.S.NO.311 OF 2010 OF THE SUB COURT, OTTAPALAM** ## **APPELLANT/PETITIONER/DEFENDANT NO.1:** ## **UNNIKRISHNAN** **AGED 59 YERS, S/O.KUTTIKRISHNAN EZHUTHASSAN, LAKSHMI, ARIYOOR THEKKUMURI DESOM, OTTAPALAM AMSOM, THOTTAKARA(P.O.), OTTAPALAM TALUK, PALAKKAD DISTRICT, NOW RESIDING AT 37/2/75, 1ST CROSS NANJAMMA LAYOUT, DEVASANDRA MAIN ROAD, KRISHNARAJAPURAM, BANGALORE-560 036.** **BY ADVS.** **SRI.K.B.ARUNKUMAR SRI.RANJIT BABU** ## **RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS 2 AND 3:** - **1 AMBIKADEVI (DIED)* D/O.KELAM KUMARATH KAMALABHAI AMMA, LAKSHMI, KEERTHI NAGAR, THOTTAKARA, KANNIAMPURAM AMSOM, THOTTAKARA DESOM, OTTAPALAM, PALAKKAD DISTRICT, PIN-679 102.** - **2 DR.RAVIKUMAR** **S/O.KAVADIYIL KUTTAN PILLA, OTTAPALAM AMSOM, VAROD DESOM, OTTAPALAM TALUK, PIN-679 102.** 2 F.A.O.No.282 of 2016 - **3 SECRETARY OTTAPALAM CO-OPERATIVE URBAN BANK LTD., OTTAPALAM, PIN-679 101.** **4* ANANDHAKUMAR S/O. AMBIKADEVI, FOOTBALL TRAINER, "TRISPORTS", TRIVENI POLYGARDEN ROAD, LAKKIDI, OTTAPALAM, PALAKKAD DISTRICT, PIN – 679 301.** **ADDL.RESPONDENT NO.4 IS IMPLEADED AS PER ORDER DATED 10.08.2023 IN I.A.NO.2 OF 2023.** **BY ADVS.** - **R1 BY SRI.R.SREEHARI** **R1 BY SRI.SACHIN VYAS** **R2 BY SMT.C.SEENA R2 BY SRI.P.P.THAJUDEEN R3 BY SRI.VINOD MADHAVAN** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 10.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 F.A.O.No.282 of 2016 ## **JUDGMENT** ## P .G. Ajithkumar, J. This is an appeal filed under Order 43, Rule 1(d) of the Code of Civil Procedure, 1908. The appellant is aggrieved by the order of the Sub Court, Ottapalam dated 06.10.2016 in I.A.Nos.1787 and 1788 of 2015 in O.S.No.11 of 2010. Those were applications for condonation of delay of 949 days and to set aside the exparte decree in that suit. The applications were dismissed. 2. The 1[st] respondent expired on 12.11.2020. His legal representative was impleaded as additional 4[th] respondent. 3. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents. 4. The 1[st] respondent filed O.S.No.311 of 2010 seeking a decree of specific performance, in the alternative, return of advance money and mandatory injunction. The suit was decreed on 15.12.2012. Since no summons was served 4 F.A.O.No.282 of 2016 on the appellant, he could not appear before the court. The 3[rd] respondent-Co-operative Urban Bank Ltd. obtained an award in an arbitration proceedings and initiated execution proceedings. When he received notice on the execution proceedings alone, the appellant came to know about O.S.No.311 of 2010. By that time, he was admitted in a hospital due to heart ailment. In such circumstances, there occurred a delay of 949 days in filing the petition for setting aside the exparte decree. I.A.Nos.1787 and 1788 of 2015 were filed by the appellant setting forth those contentions. Respondent Nos.2 and 3 filed objection refuting the contentions of the appellant. 5. The appellant was examined as PW1. He produced Exts.A1 to A11. The respondents produced Exts.B1 to B4. After considering the said evidence, the court below took the view that the appellant did have information regarding the pendency of the suit and the reasons stated by the appellant were insufficient to condone the delay. Accordingly, the petitions were dismissed. 5 F.A.O.No.282 of 2016 6. The learned counsel appearing for the appellant would submit that the appellant was residing at Bangalore during the relevant period. That fact is not disputed very much. Service of summons in the suit on the appellant was effected by publication in a local daily. The appellant would contend that the court below ought to have accepted his case that he was not aware of the pendency of the suit. From the evidence let in by the appellant, it was proved before the court below that he was undergoing treatment for heart ailment by an inpatient in a hospital. The learned counsel pointing out those aspects seeks to set aside the impugned order and to direct to restore the suit on file. 7. The 2[nd] respondent was the power of attorney of the appellant. It is seen that in the suit the 2[nd] respondent did not raise any serious contentions. Execution of the agreement based on which a decree of specific performance was sought was admitted by the 2[nd] respondent. The suit was eventually decreed allowing the 1[st] respondent to get back the advance sale consideration by adjusting against the amount due from 6 F.A.O.No.282 of 2016 the appellant to the 3[rd] respondent. When there was no proper service of summons and the appellant was suffering from heart disease, and had undergone an angioplasty during the relevant period, we are of the view that the reasons stated for the delay in filing the application for setting aside the exparte decree is genuine. 8. 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. 9. In **Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649]** the Apex Court while summarising 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 7 F.A.O.No.282 of 2016 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 8 F.A.O.No.282 of 2016 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. 21.10 If the explanation offered is concocted or the grounds urged in the application are fanciful, the 9 F.A.O.No.282 of 2016 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.” [underlines supplied] ## 10. In **Rafeek and another v. K. Kamarudeen and** **another [2021 (4) KHC 34]** a Division Bench of this Court 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 10 F.A.O.No.282 of 2016 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. 11. In the light of the law laid down in the aforesaid decisions, we are of the view that a lenient view is concomitant and the appellant is given an opportunity for contesting the suit, subject to payment of costs to mitigate the inconvenience caused to the respondents. Accordingly, this appeal is allowed on payment of a cost of Rs.10,000/(Rupees ten thousand only). The appellant shall pay the cost to the 1[st] respondent within three weeks from today. On such payment, the order dated 06.10.2016 in I.A.Nos.1787 and 1788 of 2015 will stand set aside and O.S.No.11 of 2010 will stand restored to file. 12. Since the suit is of the year 2010, the Sub Court, Ottapalam shall make every endeavour to dispose of the suit within four months from the date of appearance of the 11 F.A.O.No.282 of 2016 parties before that court. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr