V.J. Joseph @ Kunjamon v. Vinu Xavier

## **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 20[TH] DAY OF JUNE 2023 / 30TH JYAISHTA, 1945 F.A.O. NO. 99 OF 2022** **AGAINST THE ORDER DATED 09.02.2022 IN I.A.NO.1165 OF 2019 IN O.S.NO.54 OF 2015 ON THE FILE OF THE SUB COURT, KOCHI APPELLANT/PETITIONER/DEFENDANT:** **V.J.JOSEPH @ KUNJUMON** **AGED 61 YEARS, VADASSERY HOUSE, PALLURUTHY NORTH, RAMESWARAM VILLAGE, PALLURUTHY, PIN - 682 006.** **BY ADV T.B.MINI** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **VINU XAVIER** **AGED 38 YEARS, S/O.T.A.XAVIER, THAREPARAMBIL HOUSE, PALLURUTHY NORTH, RAMESWARAM VILLAGE, PALLURUTHY, KOCHI - 682 006.** **BY ADVS. JOSE TOM C. KANDATHIL MATHAI K.C.** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 20.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 F.A.O.No.99 of 2022 ## **JUDGMENT** ## P.G. Ajithkumar, J. This is an appeal filed under Order XLIII, Rule 1(c) of the Code of Civil Procedure, 1908. 2. The order dated 09.02.2022 in I.A.No.1165 of 2019 in O.S.No.54 of 2015 on the file of the Sub Court, Kochi is under challenge. 3. The appeal was admitted on 23.08.2022. When the respondent entered appearance, both parties were directed to appear before the Nodal Officer, Mediation Centre attached to this Court for exploring the possibility of a settlement. The parties could not arrive at a settlement. 4. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 5. The suit was filed by the respondent for a decree of specific performance. It was decreed on 21.12.2017. The decree for specific performance was declined, but a decree for return of advance sale consideration was ordered. The respondent filed I.A.No.140 of 2018 seeking correction of the decree. That application was dismissed and therefore the 3 F.A.O.No.99 of 2022 respondent filed C.R.P.No.841 of 2018, which was disposed of by this Court. The contention of the appellant that only costs proportionate to the decree granted should have been allowed, the same was not accepted, and therefore, the appellant filed I.A.No.169 of 2019 for a review. On 24.09.2019 that application was dismissed for default. Since the appellant was ill and held up due to serious family engagements, he could file an application to restore I.A.No.169 of 2019 on file only after 50 days of the due date. Therefore, the appellant filed I.A.No.1166 of 2019 to restore I.A.No.169 of 2019 along with I.A.No.1165 of 2019 for condonation of delay of 50 days. 6. The respondent filed objection opposing the said applications. Two-fold contentions raised by the respondents were that I.A.No.169 of 2019 was dismissed on merits and the matter was concluded by the decision of this Court in C.R.P.No.841 of 2018. The reasons stated for the delay was refuted as well. 7. The Sub Court considered the matter in detail in the light of the principle of law laid down by this Court in **Rafeek and another v. K. Kamarudeen and another** 4 F.A.O.No.99 of 2022 **[2021 (4) KHC 34]** . However, more emphasise was given to the merits of I.A.No.169 of 2019. Accordingly, the petitions were dismissed by taking a view that the relief claimed in the said review application could not be allowed and of course, the delay was not properly explained. 8. It is true that this Court in C.R.P.No.841 of 2018 took a decision regarding the respondent’s entitlement to get costs. The reason thereof was that the decree does not agree with the judgment. At any rate, merits of the contentions in I.A.No.169 of 2019 shall not ordinarily be the criteria for allowing or not of the petitions for its restoration on file and condonation of delay. Independent of the merits of I.A.No.169 of 2019, sufficiency of reason to condone the delay and set aside the order dismissing the said petition should have been considered independently. 9. The delay is of 50 days. The Apex Court and this Court considered the criteria for condonation of the delay in the following decisions. ## 10. 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 5 F.A.O.No.99 of 2022 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. 11. 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 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 6 F.A.O.No.99 of 2022 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. 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. 7 F.A.O.No.99 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.” [underlines supplied] 12. In **Rafeek** (supra) 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 F.A.O.No.99 of 2022 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. 13. In view of the law laid down in the aforesaid decisions, delay of 50 days being of a short duration is liable to be condoned. In **Robin Thapa v. Rohit Dora [(2019) 7 SCC 359]** the Apex Court held that, ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that, as far as possible, adjudication be done on merits. 14. In that view of the matter, the impugned orders in I.A.Nos.1165 and 1166 of 2019 deserve interference. Certainly, the question whether or not I.A.No.169 of 2019 is liable to be allowed is a matter to be decided in the light of 9 F.A.O.No.99 of 2022 the attending circumstances, including the order in C.R.P.No.841 of 2018. Accordingly, this appeal is allowed and on setting aside the impugned orders, I.A.Nos.1165 and 1166 of 2019 are allowed. The Sub Court, Kochi shall restore I.A.No.169 of 2019 on file and proceed with it in accordance with law. Both the parties are directed to appear before the Sub Court on 18.07.2023. The Sub Court, Kochi shall make every endevaour to dispose of I.A.No.169 of 2019 in O.S.No.54 of 2015 within a period of one month from the date of appearance of both parties. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr 10 F.A.O.No.99 of 2022 ## **APPENDIX OF FAO 99/2022** ## **PETITIONER ANNEXURES** |**Annexure A1**|**TRUE COPY OF **|**THE JUDGMENT IN CRP**|**THE JUDGMENT IN CRP**| |---|---|---|---| ||**NO.841/2018 DATED 15//2019.**||| |**Annexure A2**|**TRUE**<br>**COPY**|**OF**<br>**THE**|**ORDER**<br>**IN**| ||**I.A.NO.169/2019.**||| |**Annexure A3**|**TRUE COPY OF THE PETITION FOR**||| ||**RESTORATION**|**OF**<br>**THE**|**CASE**<br>**IA**| ||**NO.1165/2019 IN**|**THE FILE OF**|**SUB COURT,**| ||**KOCHI AND THE**|**DELAY PETITION SEEKING**|| ||**CONDONATION OF**|**DELAY IN**|**FILING THE**| ||**DELAY PETITION.**||| |**Annexure A4**|**TRUE COPY OF **|**THE PETITION SEEKING**|| ||**CONDONATION OF**|**DELAY IN**|**FILING THE**| ||**DELAY PETITION**|**IA NO.1166/2019 IN OS**|| ||**54/2015 IN THE FILE OF **||**SUB COURT**| ||**KOCHI.**|||