Vasu v. Soni W/o Late Muraleedharan and Keerthana D/o Muraleedharan (minor) represented by mother Soni

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 5[TH] DAY OF OCTOBER 2021 / 13TH ASWINA, 1943 OP(C) NO. 1768 OF 2016** **AGAINST THE JUDGMENT IN OS 185/2012 OF ADDITIONAL SUB COURT,NORTH PARAVUR, ERNAKULAM** ## **PETITIONER:** VASU AGED 74 YEARS AGED 74 YEARS, S/O. RAMAN, MANGADATHU HOUSE, VADAKKUMBHAGOM KARA, MANJAPRA VILLAGE, ERNAKULAM. BY ADV SRI.PAUL K.VARGHESE ## **RESPONDENTS:** 1 SONI W/O. LATE MURALEEDHARAN, RESIDING AT MUTTATHU HOUSE, ELANGAVAM, VARAPPETTY VILLAGE, KOTHAMANGALAM TALUK-686 691. 2 KEERTHANA D/O. MURALEEDHARAN, RESIDING AT VARAPPETTY VILLAGE,KOTHAMANGALAM TALUK, A MINOR REPRESENTED BY HER NEXT FRIEND AND MOTHER SONI, W/O. LATE MURALEEDHARAN, RESIDING AT MUTTATHU HOUSE, ELANGAVAM, VARAPPETTY VILLAGE, KOTHAMANGALAM TALUK-686 691. BY ADVS. P.VISWANATHAN (SR.) JAYASANKAR.G THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C)No.1768/2016 2 ## **K.BABU, J. =========================== OP(C) No.1768 of 2016** **===========================** Dated this the 5[th] day of October, 2021 ## JUDGMENT The challenge in this OP, filed under Section 227 of the Constitution of India, is against the common order dated 05.07.2016 in I.A.No.3239 of 2013 and I.A.No.3240 of 2013 in O.S.185 of 2012 of the Additional Sub Court, North Paravur. 2. The petitioner instituted O.S.No.185 of 2012 before the Additional Sub Court, North Paravur against one Shri Muraleedharan, seeking a decree for specific performance of an agreement for sale in respect of his one half share in the landed property having an extent of 4.29 ares with a building therein in survey Nos.393/3A and 393/3B of Manjapra Village, Aluva Taluk, Ernakulam District. Shri Muraleedharan, the defendant, entered appearance and filed written statement. As he failed to contest the case, the suit was decreed exparte by way of judgment and decree dated 10.10.2012. Thereafter, the petitioner filed I.A.No.1077 of 2013 under Section 28(3)(a) of the Specific Relief Act, 1963 before the court below. Notice was served on Shri Muraleedharan in that Interlocutory Application. Subsequently, Shri Muraleedharan died on 14.07.2013. 3. The wife and daughter of Shri Muraleedharan 3 O.P(C)No.1768/2016 (respondents herein) filed I.A.No.3239 of 2013 and I.A.No.3240 of 2013, petitions seeking to set aside the exparte decree and to condone the delay in filing the application to set aside the exparte decree respectively. By way of a common order dated 05.07.2016, the Trial Court allowed the applications on payment of Rs.4000/- as costs to the petitioner/plaintiff. 4. Being aggrieved by the order allowing I.A.No. 3239 of 2013 and I.A.No.3240 of 2013, the plaintiff has approached this court invoking the jurisdiction of this Court under Article 227 of the Constitution of India. 5. Heard the learned counsel for the petitioner and the learned counsel for the respondents. 6. The learned counsel for the petitioner submitted that the respondents failed to establish sufficient cause for setting aside the exparte decree and to condone the delay in preferring the application to set aside the exparte decree. The learned counsel further contended that the court below has not recorded any reasons for allowing the applications. 7. The learned counsel for the respondents, per contra, submitted that the respondents could establish sufficient cause for condoning the delay in preferring the application to set aside the exparte decree under Order IX Rule 13 of the Code of Civil Procedure. 8. The challenge raised by the petitioner is that the court O.P(C)No.1768/2016 4 below has not recorded any reason for passing the impugned common order. The operative portion of the impugned common order is extracted below:- **“** However, what the assertions show that they have a strong contestable case. It is true that a long period i.e.407 days has passed since the decree was passed. However, considering all the above aspect reasonable cost will redress the grievance of the respondent. Ends of justice demand favourable order in favour of the petitioners. In the result, both the IAs are allowed on condition of payment of cost of Rs.4000/- to the respondent within 15 days from today. Call on for report on compliance”. 9. On a perusal of the above extracted operative portion of the impugned order, it is seen that the court below has found that the respondents have a strong contestable case and hence the delay can be condoned. There is no finding as to whether the respondents have established sufficient cause to condone the delay in moving the application to set aside the exparte decree. 10. 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 the court-at-will disregarding the time O.P(C)No.1768/2016 5 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. In the matter of condonation of delay, it is settled that sufficient cause is required to be shown, thereby explaining the sequence of events and the circumstances that led to the inordinate delay. ## 11. 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. ## 12. 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 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 O.P(C)No.1768/2016 6 ## delineation. 13. Going by the impugned order, the trial court has not recorded any finding as to whether the respondents have established sufficient cause for condoning the delay of 407 days. 14. On a perusal of the affidavit filed in support of the application seeking condonation of delay, the respondents pleaded that the husband of the first respondent, who was the defendant in the original suit, was facing financial difficulties and because of the inability to perform the commitments undertaken by him in his business, he was mentally depressed and not in a position to face the people and he even kept away from the house and native place. She had also stated that her husband was totally in an embarassing situation and in a mentally depressed mood and due to such heavy depression, he suffered a severe cardiac attack and died on 14.07.2013. 15. The first respondent has also pleaded that the document, on the basis of which the decree was obtained, was a fabricated one. 16. On the other hand, the petitioner has raised the contention that the attempt of the respondents is to delay the execution of the decree. 17. The court below has not considered the merit of the rival contentions on the question whether the respondents have established sufficient cause in condoning the delay. O.P(C)No.1768/2016 7 18. There had been no effectual adjudication of the lis in the court below. Hence this court is of the view that the parties are to be relegated to the court below for agitating the issue as to whether the respondents herein have established sufficient cause for condoning the delay, for which, the order impugned is liable to be set aside. 19. In the result, the common order dated 05.07.2016 in I.A.No.3239 of 2013 and I.A.No.3240 of 2013 is set aside. The Interlocutory Applications are remitted to the court below for consideration afresh. The court below will dispose of the applications, within a period of two months from the date of receipt of a certified copy of this judgment, after affording sufficient opportunity of hearing to both sides. The Original Petition is disposed of as above. Sd/- ## **K.BABU, JUDGE** lgk O.P(C)No.1768/2016 8 ## **APPENDIX OF OP(C) 1768/2016** PETITIONER EXHIBITS EXHIBIT P1 A COPY OF IA NO.3240/2013 IN OS NO.185/2012 OF THE ADDITIONAL SUB COURT, NORTH PARAVUR, DATED 2.12.2013. EXHIBIT P2 A COPY OF IA NO.3239/2013 IN OS NO.185/2013 OF THE ADDITIONAL SUB COURT, NORTH PARAVUR DATED 2.12.2013. EXHIBIT P3 A COPY OF THE COUNTER AFFIDAVIT IN IA NO.3240/2013 IN OS NO.185/2012 OF THE SUB COURT, NORTH PARAVUR, DATED 15.7.2014. EXHIBIT P4 A COPY OF THE COMMON ORDERS IN IA NO.3229/2014 AND IA NO.3240/2014 OF THE ADDITIONAL SUB COURT, NORTH PARAVUR, DATED 6.7.2016.