Vijayakumar and others v. Madhavi Amma and Sasidharan Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 12TH DAY OF AUGUST 2014/21ST SRAVANA, 1936** **WP(C).No. 6214 of 2010 (O) ---------------------------** **AGAINST THE JUDGMENT IN CMA NO.19/04 IN OS 476/1998 of ADDL.MUNSIFF'S COURT, NEDUMANGAD.** **PETITIONER(S):** **--------------** **1. VIJAYAKUMAR,AGED 40 YEARS, S/O.RAGHAVAN, PLACHIKUZHY VEEDU, VAVANIKONAM, OZHUKUPARA, VATTAPPARA VILLAGE.** **2. MADHUSOODHANAN NAIR, AGED 50 YEARS, S/O.SUKUMARAN NAIR, DIVYA BHAVAN, UDIMOODU, VATTAPPARA VILLAGE.** **3. SURESHLAL, AGED 39 YEARS, KADAYIL VEEDU, VATTAPPARA.** **BY ADVS.SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHI SMT.REENA THOMAS SRI.L.RAM MOHAN** **RESPONDENT(S):** **--------------** **1. MADHAVI AMMA, D/O.BHAGAVATHY AMMA, KAMUKARAKONATHU VEEDU, KAZHUNAD WARD, VATTAPPARA VILLAGE.** **2. SASIDHARAN NAIR, S/O.VASUDEVAN NAIR, KAMUKARAKONATHU VEEDU, KAZHUNAD WARD, VATTAPPARA VILLAGE.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Nan/** ## **WP(C).No. 6214 of 2010** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT.P1 - COPY OF THE JUDGMENT DATED 28/1/2000 IN O.S.NO.476/98 OF THE ADDITIONAL MUNSIFF, NEDUMANGAD.** **EXT.P2 - COPY OF THE PETITION ALONG WITH THE AFFIDAVIT FILED BY THE PETITIONERS SEEKING TO SET ASIDE THE EX PARTE DECREE.** **EXT.P3 - COPY OF THE ORDER DATED 28/1/2000 IN I.A.NO.3447/98 IN O.S.NO.476/98.** **EXT.P4 - COPY OF THE ORDER DATED 30/11/2001 IN I.A.NO.1407/2000 IN O.S.NO.476/98 OF THE ADDITIONAL MUNSIFF, NEDUMANGAD.** **EXT.P5 - COPY OF THE PETITION FILED AS I.A.NO.873/04 TO CONDONE THE DELAY IN FILING CMA.** **EXT.P6 - COPY OF THE APPEAL MEMORANDUM FILED AS CMA NO.19/04.** **EXT.P7 - COPY OF THE ORDER DATED 31/3/2006 IN I.A.NO.873/04 IN CMA NO.19/04.** **EXT.P8 - COPY OF THE ORDER DATED 31/3/2006 IN CMA NO.19/04.** **EXT.P9 - COPY OF THE PLAN PREPARED BY THE COMMISSIONER IN THE SUIT FILED AS O.S.NO.476/98 OF THE ADDITIONAL MUNSIFF, NEDUMANGAD.** **ANNEXURE-A1 - COPY OF THE O.P. BILL ISSUED BY SREE GOKULAM MEDICAL COLLEGE & RESEARCH FOUNDATION, VENJARAMOODU P.O., TRIVANDRUM DATED 8/3/2012.** //true copy// P.S. to Judge **K. HARILAL, J. -----------------------------------------------------W.P. (C) No.6214 of 2010-O -----------------------------------------------------Dated this the 12[th] day of August, 2014** ## **JUDGMENT** The petitioners are the defendants in O.S.No.476/98 on the files of the Additional Munsiff's Court, Nedumangad, as well as the appellants in C.M.A.No.19/04 on the files of the Sub Court, Nedumangad. The above suit was one for injunction restraining the defendants from trespassing into the plaint schedule property or from destroying its barbed wire fencing or from interfering with the plaintiffs' possession and enjoyment of the plaint schedule property. The above C.M.A. was filed against the order passed in I.A.No.3447/98 in O.S.No.476/98 on the files of the Additional Munsiff's Court, Nedumangad. **W.P. (C) No.6214 of 2010** -: 2 :- I.A.No.3447/98 was filed under Order XXXIX Rule 2A of the Code of Civil Procedure. The petitioners failed to appear and contest the above I.A. and the learned Munsiff passed an ex parte order on 28/1/2000 detaining the petitioners in civil prison for a period of 7 days for violation of the injunction order of the court in I.A.No.3036/98 and O.S.No.476/98. 2. According to the petitioners, they were totally unaware of the passing of the order. Though they had entrusted the matter with an Advocate, he did not instruct them as to the necessity of filing an objection and adducing evidence to show their innocence in the matter. Thus, without hearing the petitioners, an ex parte order was passed in the I.A. and further, they were directed to detain in civil prison. They got knowledge about the above said order only when the respondents made a declaration in public near the petitioners' residence indicating the detention order impending upon them and immediately they **W.P. (C) No.6214 of 2010** -: 3 :- approached the counsel. Then the petitioners were informed that a petition had been filed to set aside the ex parte decree which was also dismissed. As a matter of fact, the petitioners were not duly informed as to the impugned order. So, there was a delay of 4 years, 9 months and 7 days in filing the appeal against the above said order. Consequently, the petitioners filed C.M.A.No.19/04 with I.A.No.873/04 to condone the delay of 4 years, 9 months and 7 days. After hearing the petitioners and the respondents, the learned Sub Judge dismissed the petition to condone the delay and consequently, the C.M.A. was also dismissed. This writ petition is filed challenging the order passed in I.A.No.873/04 in C.M.A.No.19/04 and the judgment consequently passed in C.M.A.No.19/04. 3. The learned counsel for the petitioners advanced arguments challenging the findings under which the impugned order and the judgment have been passed by the courts below. According to him, **W.P. (C) No.6214 of 2010** -: 4 :- the findings of the courts below are opposed to the legal position well settled by the Apex Court in the matter of condoning the delay. In support of the above arguments, the learned counsel cited the decision reported in S. Ganesharaju v. Narasamma [2013 (11) SCC 341)] and drew my attention to paragraphs-12 and 15 of the said judgment. Going by the averments in I.A.No.3447/98, it is averred that they were unaware of the order passed on the petition filed under Order XXXIX Rule 2A and the counsel has not duly informed the passing of the order detaining the petitioners in civil prison. It is also stated that the 3[rd] defendant was entrusted with the conduct of the case by others and he was laid up due to kidney failure, so he could not contact the concerned lawyer in time and the lawyer also failed to inform the petitioners as regards the passing of the order against them. They came to know only when the respondents openly made a declaration that the petitioners would **W.P. (C) No.6214 of 2010** -: 5 :- be detained in civil prison, immediately they rushed to the office of the counsel and came to know that the ex parte decree and the order under challenge were passed four years back. According to the learned counsel for the petitioners, there was no wilful negligence or laches on the part of the petitioners in causing the delay. 4. The short question that arises for consideration in this writ petition is whether the impugned order and the judgment passed in appeal can be justified in view of the well settled legal position by the Apex Court. In the matter of delay, the Apex Court again and again reiterated the principle that in the matter of condoning the delay, liberal view has to be taken and the expression “sufficient cause” appearing in Sec.5 of the Limitation Act must be construed liberally. If there is sufficient cause, the condonation of delay is automatic. But, if there is no sufficient cause, it is discretionary and the **W.P. (C) No.6214 of 2010** -: 6 :- discretion must be exercised on some principles. It is also stated that if there is any mala fides in the matter of causing delay, the delay cannot be condoned. 5. But, I am of the view that in the case of an order directing the parties to be detained in civil prison, no kind of mala fides can be attributed to the person against whom the order has been passed, in causing the delay. 6. Therefore, I am of the view that even though there is inordinate delay, the delay is neither willful nor caused negligently. So, the delay can be condoned on condition that the petitioners shall deposit a cost of `10,000/- (Rupees ten thousand only) to the Additional Munsiff's court, Nedumangad, within a period of one month from the date of receipt of a copy of this judgment. The impugned order will stand set aside on compliance of the said condition. In the event of failure to comply the direction, the impugned order and the judgment will stand in force. **W.P. (C) No.6214 of 2010** -: 7 :- The cost shall be given to the respondents on application by the respondents. This writ petition is allowed in the above terms. Sd/- **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge