Vipindas et al. v. Muthuchami

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 4[TH] DAY OF APRIL 2022 / 14TH CHAITHRA, 1944** **F.A.O.NO. 30 OF 2022** **AGAINST THE ORDER DATED 08.11.2021 IN I.A.NOS.3020 AND 3021 OF 2015 IN O.S.NO.608 OF 2012 ON THE FILE OF THE PRINCIPAL SUB COURT, PALAKKAD** ## **APPELLANT/PETITIONERS/LRs.OF DEFENDANT:** **1 VIPINDAS AGED 48 YEARS, S/O. SUKUMARAN, KOLOTH HOUSE, ELIPPARA, KOZHIPPARA POST, CHITTUR TALUK, PALAKKAD DISTRICT - 678 557.** - **2 BINDU** **AGED 49 YEARS, 3W/O. ANDAVAN, APPUPULLOOR, NAVUKONAM, ERATTAKKULAM POST, NALLEPPILLY, PALAKKAD DISTRICT - 678 622.** - **3 BIJU,** **AGED 44 YEARS, S/O. S/O. SUKUMARAN, KOLOTH HOUSE, ELIPPARA, KOZHIPPARA POST, CHITTUR TALUK, PALAKKAD DISTRICT - 678 557.** - **4 BEENA,** **AGED 40 YEARS, W/O. HARIDAS, KOLOTH HOUSE, ELIPPARA, KOZHIPPARA POST, CHITTUR TALUK, PALAKKAD DISTRICT - 678 557.** - **5 VINOD,** **AGED 37 YEARS, S/O. SUKUMARAN, KOLOTH HOUSE, ELIPPARA, KOZHIPPARA POST, CHITTUR TALUK, PALAKKAD DISTRICT - 678 557.** **BY ADVS. SAJAN VARGHEESE K.** **LIJU. M.P** 2 F.A.O.No.30 of 2022 ## **RESPONDENT/RESPONDENT/PLAINTIFF:** ## **MUTHUCHAMI** **AGED 65 YEARS, S/O. CHINNAPPAKOUNDER, CHANDRA NAGAR, KALLIYAMPARA, VADAKARAPATHY VILLAGE, PARISAKKAL POST, CHITTUR TALUK, PALAKKAD DISTRICT - 678 556.** **BY ADVS.** **P.R.VENKATESH G.KEERTHIVAS** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 04.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 F.A.O.No.30 of 2022 ## **JUDGMENT** Ajithkumar, J. This appeal was filed by the defendants in O.S.No.608 of 2012 on the file of the Principal Sub Court, Palakkad. They filed I.A.Nos.3020 of 2015 along with I.A.No.3021 of 2015 seeking to set aside the exparte decree in the suit and to condone the delay of 1048 days. The Sub Court dismissed the applications as per order dated 08.11.2021. Challenging the said orders, the appellants have preferred this appeal under Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908. 2. On 02.03.2022, the appeal was admitted and urgent notice by speed post was ordered to be sent to the respondent. 3. Heard the learned counsel appearing for the appellants and also the learned counsel appearing for the respondent. 4. The defendant in O.S.No.608 of 2012 , Smt.Thanka filed I.A.Nos.3020 and 3021 of 2015 contending that she had been suffering from rheumatism, asthma and also age-old 4 F.A.O.No.30 of 2022 diseases since 2012, and therefore she was unable to appear in court. Besides, she contended that she did not receive any notice or summons in the case. Thereby she maintained that there was no laches or negligence on her part and on getting notice in the execution petition, she had filed those interlocutory applications. 5. The respondent filed a counter statement denying the said contentions of the defendant. The respondent would contend that the defendant received the summons in the suit as well as notice in the application for attachment issued from the court. She wilfully avoided appearance before the court. It is incorrect that she was suffering from any illness. Even after receiving notice in the execution petition, she did not immediately venture to file the application for setting aside the decree. Therefore, there was laches and negligence on her part. 6. During the pendency of the applications Smt. Thanka died and her legal representatives who are the appellants came on record. The 1[st] appellant gave evidence as 5 F.A.O.No.30 of 2022 PW1. The respondent got marked Exts.B1 to B4. After considering the said evidence, the Sub Court held that the reasons stated for the delay was not convincing and the court was unable to exercise discretion in favour of the appellants. The principles laid down in **Lanka Venkatesaralu v. State of A.P. [AIR 2011 SC 1199]** that the discretion to condone the delay is not an unbridled or unlimited power, but is a power which should be exercised in a systematic manner informed by reasons and, even though the word sufficient has been liberally interpreted, that cannot be so liberally interpreted as to defeat the provisions of law was referred to by the learned Sub Judge to fortify his reasoning. 7. The learned counsel appearing for the appellants would submit that the original defendant, who died during pendency of the proceedings was aged above 70 years and an illiterate lady. Her son and daughter-in-law died leaving the entire burden to look after the grandchildren upon her shoulders. Pressing needs in her life, particularly treatment of her grand children, compelled her to borrow Rs.50,000/- from 6 F.A.O.No.30 of 2022 the respondent and exploiting that opportunity, an agreement for sale was got executed stealthily by the respondent, which resulted in filing of the suit. It is thereby contended that there was no liability as alleged in the suit. That apart, being an aged, ailing and rustic lady having the burden of looking after her grandchildren, was unable to approach the court in time. The learned counsel would submit that on taking into account all such matters, the Sub Court ought to have condoned the delay. 8. The learned counsel for the respondent, on the other hand, would contend that evidence of PW1 is insufficient to substantiate the contentions raised in the interlocutory applications. The plea that summons in the suit was not served on Smt.Thanka, the original defendant, is incorrect, as can be seen from Exts.B1 and B2 and further application for setting aside the decree was filed much after she received notice in the execution petition. In his view, all those facts would point to the wilful negligence on the part of Smt.Thanka, and therefore, the order of the Sub Court is 7 F.A.O.No.30 of 2022 quite legal and just. 9. PW1 deposed regarding the hard realities confronted by her grandmother, Smt.Thanka. Her son and daughter-in-law died untimely. She had to look after her grandchildren after the death of both of them. She was the only person, who could look after her ailing grandchildren. As such, it has become all the more difficult for her to manage the family matters. It was in the midst of such events, the suit came to be filed. 10. In the light of Exts.B1 and B2, it cannot be said that Smt.Thanka did not know about the suit. But the circumstances in which she had gone through during the period was so hard-pressing and she could not be found fault with for giving priority to the necessities in life rather than defending the suit. It is no doubt true that having known about the suit, it was the duty of Smt.Thanka to defend it. Her failure to do so cannot ordinarily be justified. But in the light of the aforesaid circumstances, which are borne out from the materials on record, her failure to appear in court in time is 8 F.A.O.No.30 of 2022 sufficiently justified. 11. The Limitation Act, 1963 was enacted by the Parliament to consolidate and amend the law for the limitation of suits and other proceedings and for purposes connected therewith. Section 5 of the Act deals with extension of prescribed period in certain cases. As per Section 5, any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. As per Explanation to Section 5, the fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this Section. 12. 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 9 ## F.A.O.No.30 of 2022 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 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. Therefore, in the matter of condonation of delay, sufficient cause is required to be shown, thereby explaining the sequence of events and the circumstances that led to the delay. 13. 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. 10 F.A.O.No.30 of 2022 14. 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 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 11 F.A.O.No.30 of 2022 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. 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. 12 F.A.O.No.30 of 2022 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. 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.” 15. In **Esha Bhattacharjee** , after summerising the principles applicable while dealing with an application for 13 F.A.O.No.30 of 2022 condonation of delay, the Apex Court added some more guidelines taking note of the present day scenario, that an application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. An application for condonation of delay should not be dealt with in a routine manner on the basis of individual philosophy which is basically subjective. Para.22 of the judgment reads thus; “22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:— 22.1 An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. 22.2 An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. 14 F.A.O.No.30 of 2022 22.3 Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. 22.4 The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.” ## 16. In **Rafeek and another v. K. Kamarudeen and** ## **another [2021 (4) KHC 34 : (2021) 2 RCR (Rent) 223 :** **2021 AIR CC 2752]** a Division Bench of this Court in which one among us [Anil K. Narendran, J] was a party 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 15 F.A.O.No.30 of 2022 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. 17. The delay in this case is 1048 days. The delay is therefore long. But, when on an appraisal of the facts of this case, which are mentioned above, we are of the view that discretion in the matter of condonation of delay has to be exercised in favour of the appellants. Also, we are of the view that this is a fit case where the appellants are entitled to have an opportunity to contest the matter and get a decision on merits. Hence, we find that the orders of the Sub Court in I.A.Nos.3020 and 3021 of 2015 are liable to be set aside. The delay is liable to be condoned and the decree dated 30.10.2012 set aside. 18. On account of the long delay, the respondent was put to much inconvenience. He filed an execution petition and prosecuted the same, which would become futile on account 16 F.A.O.No.30 of 2022 of this judgment. Therefore, the inconvenience caused to the respondent has to be remedied by payment of costs. Accordingly, this appeal is allowed. On setting aside the order dated 08.11.2021 of the Principal Sub Court, Palakkad, I.A.Nos.3020 and 3021 of 2015 in O.S.No. 608 of 2012 are allowed on payment of a cost of Rs.10,000/- by the appellants to the respondent. Cost shall be paid within two weeks from today. On payment of costs, the suit will stand restored on file. Both parties will appear before the Principal Sub Court, Palakkad, on 19.05.2022. The appellants shall file a written statement in the suit within two weeks from 19.05.2022. Being an old suit, the Principal Sub Court, Palakkad, is directed to dispose of the suit as expeditiously as possible, at any rate, within a period of four months from 19.05.2022. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr