IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
FAO NO. 53 OF 2022
AGAINST THE ORDER DATED 09.11.2021 IN I.A.NOS.1 & 2 OF
2020 IN O.S.NO.58 OF 2016 OF SUB COURT AT PUNALUR,
KOLLAM.
APPELLANT/PETITIONER:
JAYALAL
AGED 56 YEARS, S/O. NADESAN, RESIDING AT VISHNU
VIHAR, ANCHAL P.O, PUNALUR TALUK, KOLLAM
DISTRICT, PIN - 691306.
BY ADVS.
S.SREEJITH
ASHA JYOTHY
RESPONDENTS/RESPONDENTS:
1 SUGHESH
AGED 42 YEARS, S/O. DHARMAPUTHRAN PILLAI,
VEMBANATTU VEEDU, MANIYAR P.O, PUNALUR TALUK,
KOLLAM DISTRICT - 691333.
2 DHARMAPUTHRAN PILLAI,
AGED 64 YEARS
VEMBANATTU VEEDU, MANIYAR P.O, PUNALUR TALUK,
KOLLAM DISTRICT - 691333.
BY ADV MANOJ RAMASWAMY
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR
FINAL HEARING ON 26.05.2022, THE COURT ON 03.06.2022
DELIVERED THE FOLLOWING:
2
F.A.O.No.53 of 2022
JUDGMENT
Ajithkumar, J.
This is an appeal filed under Order XLIII, Rule 1(d) and Rule 1A of the Code of Civil Procedure, 1908. The plaintiff in O.S.No.58 of 2016 before the Sub Court, Punalur, is the appellant. The suit was rejected and the counter-claim decreed ex parte. The appellant filed I.A.Nos.1 and 2 of 2020 seeking to condone the delay of 1071 days and to set aside the order rejecting the plaint as well as the exparte decree in the counterclaim. On 09.11.2021 the learned Sub Judge dismissed both the applications. This appeal has been filed challenging the said order.
2. This appeal was admitted to file on 19.04.2022 directing notice to the respondents. The respondents entered appearance through their learned counsel.
3. Heard the learned counsel appearing for the appellant and also the learned counsel appearing for the respondents.
4. O.S.No.58 of 2016 was filed by the appellant seeking a decree for realisation of money based on a building 3 F.A.O.No.53 of 2022 contract. The respondents resisted the suit and also filed a counter-claim. The appellant failed to remit balance court fees due to be paid on the plaint. Therefore, the plaint was rejected by the Sub Court on 12.04.2017. He remained ex parte in the counter-claim, and on 05.06.2017, the counter- claim was decreed exparte.
5. The appellant did not approach the court for getting the suit restored or to set aside the exparte decree in the counter-claim immediately. After a delay of 1071 days, the appellant filed the interlocutory applications setting forth the reason that his wife Smt.Vinodini had been undergoing medical treatment on account of various ailments, including rheumatism since 2015. In 2019 also she had to undergo treatment in Aster Medcity besides the continued treatment in Ayurveda. The appellant also fell ill and had to undergo treatment. In the said circumstances, he was unable to approach the court on time. In the meantime, he received notice in the execution petition filed by the respondents for executing the decree in the counter-claim and immediately he 4 F.A.O.No.53 of 2022 had filed the applications.
6. The respondents filed counter statements to both the applications. They contended that it was absolutely incorrect that Smt.Vinodini had been undergoing treatment. The appellant also did not undergo treatment as he claimed. He purposefully avoided appearance before the court and to pay the balance court fees. The reasons now set forth are totally unreal and insufficient to condone the long delay of 1071 days. The documents produced by the appellant are a few prescriptions and related documents, that are totally insufficient to show that the appellant or his wife was having any serious illness. Accordingly, the respondents took the stand that the applications were filed without any bona fides.
7. The appellant was examined as PW1 and documents produced by him were received in evidence as Exts.A1 to A6(b). After considering the material on record, the Sub Court held that the evidence was totally insufficient to substantiate the reasons stated by the appellant. Lack of evidence to show that either the appellant or his wife was 5 F.A.O.No.53 of 2022 under treatment for any ailment of such a nature requiring admission in the hospital and non-production of any medical certificate were based on by the Sub Court to hold that the reasons stated for the delay are insufficient.
8. The learned counsel appearing for the appellant would submit that both the appellant and his wife were chronic patients requiring continuous treatment and in no way the appellant was able to approach the court during that period. The oral testimony of PW1 in that regard has been cogent, but the learned Sub Judge interpreted the evidence in the wrong perspective and entered a wrong finding that the reasons were not sufficient. On a perusal of the documents produced by the appellant and the oral testimony of PW1, it is well substantiated that the appellant was unable to approach the court or his lawyer during the relevant time. When he recovered and was able to approach the court, the COVID came in, and therefore, more delay occurred. In the said circumstances, the learned counsel would urge that the appellant deserves an opportunity to have a decision on the 6 F.A.O.No.53 of 2022 merits of the matter. The learned counsel appearing for the appellant by placing reliance on Rohin Thapa v. Rohit Dora [(2019) 7 SCC 359] and Kozhikkara Veettil Saidalavi (died) and others v. P.B.Abdul Hameed and others [2022 (1) KHC 13] submitted that a liberal view in condonation of delay, especially in cases where sufficient cause is established, is warranted. Highlighting the said principle, the learned counsel seeks to reverse the order of the learned Sub Judge by taking a pragmatic view in the matter.
9. The learned counsel appearing for the respondents, on the other hand, would submit that if it were a case where medical records show any continued treatment of either the appellant or his wife, a lenient view should have been taken; whereas the documents produced by the appellant are a few prescriptions and medical bills and are totally insufficient to show that either of them was seriously ill or under continued treatment. This is a case where the appellant discontinue to appear in court when he was called upon to pay the balance 7 F.A.O.No.53 of 2022 court fees and it was only a matter of prudence that he was fully conscious that the suit and the counterclaim would be disposed for default. Therefore, on no account the laches on the part of the appellant could be condoned.
10. There is no rule to guide as to when can courts record satisfaction about the sufficiency of the reason mentioned in Section 5 of the Act. It is for the court to consider in an objective way the materials before it and record its satisfaction or not about the sufficiency of the cause. Even if there have been intervals between the disabling factors, it is for the court to decide whether the person was justified in not approaching the court in time.
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. 8 F.A.O.No.53 of 2022
12. In Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649] the Apex Court while summarizing 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.
13. In Esha Bhattacharjee, after summarizing the principles applicable while dealing with an application for 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 9 F.A.O.No.53 of 2022 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.
14. This Court in Rafeek and another v. K.
Kamarudeen and another [2021 (4) KHC 34] observed, '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 : 1987 KHC 911] 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 : 2013 KHC 4725].'
15. After such discussion, the Court in Rafeek (supra) held that the Law of Limitation is founded on public policy to ensure that the parties to litigation do not resort to dilatory tactics and seek legal remedy without delay and in an application filed under Section 5 of the Act, the court can 10 F.A.O.No.53 of 2022 condone the delay only if sufficient cause is shown.
16. In Kozhikkara Veettil Saidalavi (supra) this Court took a view that disposal of litigations on merits is a requirement of law, unless there is sufficient reason to deviate from it. The principle is that when the delay is of short duration, a more liberal approach is expected and a party shall normally be allowed to have a decision on merits. The Apex Court in Robin Daha (supra) held that,-
"8. 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."
17. In that case the delay was not so long. The Apex Court on taking into consideration that aspect and the submission of the appellant that he was prepared to deposit the entire amount spent by the respondent for getting the sale deed executed, etc. allowed the appeal and set aside the decree, but only on payment of exemplary cost and compensation to the opposite party.
11F.A.O.No.53 of 2022
18. In the instant case, the delay was 1071 days. Even excluding the period after 25.03.2020 in the light of the decision of the Apex Court IN RE:CONTAGION OF COVID 19 VIRUS IN PRISONS [2021 SCC Online SC 376] there is a delay of nearly 1000 days. On account of the non- appearance of the appellant, counter-claim happened to be decreed exparte. The plaint was rejected not for the mere reason of the non-appearance of the appellant, but for want of payment of the balance court fees. If a plaint is rejected for non-payment of court fees, it is a deemed decree by virtue of the provisions of Section 2(2) of the Code. Such an order is not liable to be set aside under Order IX, Rule 13 of the Code. No reason, whatsoever, for not making payment of the balance court fees has been stated by the appellant. What has been stated is only the reasons for the non-appearance in court in time. Therefore, even if the delay is condoned and I.A.No.2 of 2020 is allowed, in order to have the suit restored on file, there shall be a further order of setting aside the order of rejection, for which no steps have been taken by the 12 F.A.O.No.53 of 2022 appellant. There is such a procedural infraction also in the proceedings initiated by the appellant by filing I.A.Nos.1 and 2 of 2020.
19. PW1 has stated before the court that he as well as his wife was suffering from ailments during the relevant period. The documents produced, which are admitted in evidence as Exts.A1 to A6(b) are prescriptions and cash bills for the purchase of medicines. From the said documents, it is absolutely unknown as to during which period the appellant and his wife were under treatment. On a perusal of the said documents, what can be discerned is that the wife of the appellant had taken treatment for rheumatic issues. What was for the appellant has taken treatment is not able to be ascertained from any of the said documents. Without there having evidence by way of medical certificates or evidence tendered by the doctors who treated the appellant and his wife, the oral testimony of PW1 or the documents now available on record are insufficient to probabilize that the appellant was unable to attend the court proceedings during 13 F.A.O.No.53 of 2022 the long period of nearly 1000 days.
20. In the above circumstances, we are of the view that even on taking the most lenient view, the delay that occurred in this case is not liable to be condoned, and we are unable to interfere with the impugned orders. The appeal therefore fails and the same is dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE Sd/-
P.G. AJITHKUMAR, JUDGE dkr