Unnikrishnan v. Sethumadhavan

## **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.241 OF 2015** **AGAINST THE COMMON ORDER IN I.A.NO.591 OF 2011 AND 592 OF 2011 IN O.S.NO.46 OF 2009 OF SUB COURT, OTTAPPALAM DATED 02.06.2015** ## **APPELLANT/PETITIONER/DEFENDANT:** **UNNIKRISHNAN** **AGED 45 YEARS S/O.RAMANKUTTY THARAKAN, THOTTATHIL VEERAMANGALAM, MANGODE DESOM, OTTAPALAM TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER, INDIRA.** **BY ADVS. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA** ## **RESPONDENT/RESPONDENT/DECREE HOLDER:** **SETHUMADHAVAN AGED 38 YEARS S/O.GOPI KURUPPU, AMBADIYIL VELLINEZHI AMSOM, DESOM OTTAPALAM TALUK-679 101.** **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.241 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.591 and 592 of 2011 in O.S. No.46 of 2009. Those applications were filed by the appellant seeking to set aside the ex parte decree dated 25.07.2009 in that suit and to condone delay of 555 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. On 21.11.2015, an order of temporary injunction restraining the respondents from alienating or encumbering the property scheduled in O.S.No.46 of 2009 was granted. 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 3 FAO NO.241 of 2015 25.07.2009 and to condone the delay of 555 days for the reason that he did not receive summons in the suit since he was working abroad. It is contended that a 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 and therefore the delay had occasioned in filing the application for setting aside the ex parte decree. The appellant would contend that the delay is thus sufficiently justified. 5. 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 4 FAO NO.241 of 2015 application. It is accordingly contended that the Sub Court rightly had rejected the applications. 6. The appellant produced Exts.A1 to A5 apart from tendering the oral testimony of PW1. Those are medical records showing treatment of PW1 during the period from May to June in 2011. The ex parte decree was passed on 25.07.2009. The court below took the view that even if PW1 was under treatment during May to July in 2011, that cannot be a reason justifying the non appearance of the appellant before the court on 25.07.2009. It was also held that the said medical records would not help the appellant to explain the delay in filing the application for setting aside the decree. 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** 5 FAO NO.241 of 2015 **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 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 6 FAO NO.241 of 2015 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. 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 7 FAO NO.241 of 2015 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. 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] ## 9. 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 8 FAO NO.241 of 2015 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. 10. 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. 46 of 2009 cannot be said to be totally incorrect. In the said factual situation, it cannot be said that delay of 555 days is 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 555 days can be condoned and the petition for setting aside the ex parte decree dated 25.07.2009 can be allowed on payment of a cost to the respondent to compensate the inconvenience 9 FAO NO.241 of 2015 caused to him. 11. 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, I.A.No.591 and 592 of 2011 will stand allowed. The Sub Court, Ottappalam will thereupon restore O.S.No.46 of 2009 on the 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.46 of 2009 within four months from the date of appearance of the parties. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** PV