Unnikrishnan v. Jisha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR TUESDAY, THE 13[TH] DAY OF JUNE 2023 / 23RD JYAISHTA, 1945 FAO NO. 242 OF 2015** **AGAINST THE ORDER IN I.A.NO.2440 OF 2012 AND 2441 OF 2012 IN O.S.NO.97 OF 2009 ON THE FILE OF THE SUB COURT, OTTAPPALAM DATED 02.06.2015** ## **APPELLANT/APPELLANT/DEFENDANT:** **UNNIKRISHNAN** **S/O.THOTTATHIL RAMANKUTTY THARAKAN, MANGODE DESOM, VEERAMANGALAM AMSOM, OTTAPALAM TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER INDIRA, W/O.THOTTATHIL UNNIKRISHNAN.** **BY ADVS. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **JISHA D/O.PATHAYATHIL VIJAYALAKSHMI, VELLINEZHI AMSOM DESOM, OTTAPALAM TLAUK, PALAKKAD DISTRICT-679 504.** **BY ADV. SRI.R.SREEHARI** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 13.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 FAO NO.242 of 2015 ## **J U D G M E N T** ## P.G.Ajithkumar, J. This appeal was directed against the order of the Sub Court, Ottappalam in I.A. Nos.2440 and 2441 of 2012 in O.S. No.97 of 2009. Those applications were filed by the appellant seeking to set aside the exparte decree dated 25.07.2009 in that suit and to condone the delay of 11 months and 23 days. The Sub Court dismissed those applications as per the order dated 02.06.2015 which is under challenge in this appeal filed under Section 104 of Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908. 2. This matter was referred for mediation in order to explore the possibility of a settlement. But that attempt failed. 3. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 4. The appellant sought to set aside the decree dated 25.07.2009 and to condone the delay of 11 months and 23 days for the reason that he did not receive summons in the suit since he was working abroad. It is contended that a 3 FAO NO.242 of 2015 notice was seen exhibited on the fence of the appellants’ property from which the power of attorney holder of the appellant who is his wife came to know about the proceedings in the court and in the ensued enquiry alone she came to know about the decree dated 25.07.2009. The appellant could file the petition for setting aside the ex parte decree only thereafter. The delay occasioned in filing the application for setting aside the ex parte decree is thus claimed to have been sufficiently explained. Respondent refuted the said contentions of the appellant and contended that the power of attorney of the appellant who was examined as PW1 in Court must have known about the sale proclamation much earlier and therefore the delay in filing the petition is not justifiable. The learned counsel appearing for the respondent pointed out the admissions of PW1 that she came to know the proceedings in the execution petition much before filing of the present application. It is accordingly contended that the Sub Court rightly had rejected the applications. 5. PW1 is the power of attorney of the appellant. She deposed in detail regarding the reasons for the appellant's 4 FAO NO.242 of 2015 failure to appear before the Court on 25.07.2009. PW1, being a power of attorney was also stated to be in a position not to approach the counsel or appear in Court due to her illness. The Sub Court did not accept the said version. It was observed by the Sub Court that inconvenience of PW1 to appear before the Court was not substantiated and that the evidence on record was not sufficient to condone the delay. 6. 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. 7. 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 5 FAO NO.242 of 2015 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. 6 FAO NO.242 of 2015 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 courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 7 FAO NO.242 of 2015 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] 8. 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 by the Apex Court in **Esha Bhattacharjee [(2013) 12 SCC 649]** . Inordinate delay, which attracts doctrine of prejudice, 8 FAO NO.242 of 2015 warrants strict approach, whereas, a delay of short duration or few days, which may not attract doctrine of prejudice, calls for a liberal delineation. 9. The fact that the appellant was working abroad is not in dispute. There is no personal service of summons in the suit. In such circumstances, the oral testimony of PW1 that the appellant did not get information regarding pendency of O.S.No. 97 of 2009 cannot be said to be totally incorrect. In the said factual situation the delay of 11 months and 23 days cannot be treated as inordinate. Applying the preposition of law laid down in the aforesaid decisions, it is appropriate to take a lenient view in this case. Hence we are of the view that the delay of 11 months 23 days can be condoned and the petition for setting aside the decree dated 25.07.2009 can be allowed on payment of cost to the respondent to compensate the inconvenience caused to him. 10. Accordingly this appeal is allowed. The impugned order is set aside on the condition of payment of a cost of Rs.10,000/- by the appellant to the respondent within a period of three weeks from today. On such payment, 9 FAO NO.242 of 2015 I.A.No.2440 and 2441 of 2012 will stand allowed. The Sub Court, Ottappalam will thereupon restore O.S.No.97 of 2009 on file and proceed in accordance with law. Both parties are directed to appear before the Sub Court Ottappalam on 10.07.2023. The Sub Court shall make every endeavour to dispose of O.S. No.97 of 2009 within four months from the date of appearance of the parties. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** PV