Lal Sunil Prakash vs Chandra Sekharan
2021 Latest Caselaw 16191 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
       THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                  &
            THE HONOURABLE MRS. JUSTICE M.R.ANITHA
WEDNESDAY, THE 4TH DAY OF AUGUST 2021 / 13TH SRAVANA, 1943
                   FAO NO. 150 OF 2019
       AGAINST THE COMMON ORDER DATED 19/6/2019 IN
 I.A.NO.1000/15 AND 1001/15 IN OS 106/2011 OF SUB COURT,
               NEYYATTINKARA, THIRUVANANTHAPURAM

APPELLANT/PETITIONER/DEFENDANT:

            LAL SUNIL PRAKASH,
            AGED 51 YEARS
            S/O. NESON, LAL BHAVAN, ARAYOOR WEST , CHENKAL
            VILLAGE, NEYYATTINKARA TALUK.

            BY ADVS.
            L.MOHANAN
            SMT.LIGEY ANTONY



RESPONDENT/COUNTER PETITIONER/PLAINTIFF:

            CHANDRA SEKHARAN
            S/O. NEELAKANDA PILLAI, AMRITHA BHAVAN,
            KOOVAKKARA, VELLARADA VILLAGE, PIN-680 584

            BY ADV SRI.S.JUSTUS




     THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR
ADMISSION    ON   04.08.2021,    THE     COURT   ON   THE   SAME   DAY
DELIVERED THE FOLLOWING:
                                     -2-

FAO NO. 150 OF 2019



                                 JUDGMENT

Anil K. Narendran, J.

The appellant is the defendant in O.S.No.106 of 2011 on

the file of the Sub Court, Neyyattinkara, a suit filed by the

respondent-plaintiff for recovery of an amount of

Rs.2,50,000/- together with interest, alleged to have been

borrowed by the defendant on 25.04.2010 after executing a

promissory note in favour of the plaintiff. On 15.06.2013,

when the suit was listed for evidence, the defendant was set

ex-parte. The court below proceeded with the said suit and

passed an ex-parte decree dated 15.06.2013. The defendant

filed I.A.No.1001 of 2015, an application under Order IX Rule

13 of the Code of Civil Procedure seeking an order to set aside

the exparte decree dated 15.06.2013, and I.A.No.1000 of

2015 under Section 5 of the Limitation Act, 1963, seeking an

order to condone the delay of 1530 days in filing the

application to set aside the ex-parte decree. The plaintiff filed

objections, opposing the reliefs sought for in those

interlocutory applications. Before the court below, the

FAO NO. 150 OF 2019

defendant was examined as PW1. The court below by the

impugned order dated 19.06.2019 dismissed both the

interlocutory applications, on a finding that the defendant

could not make out sufficient cause to condone the delay of

1530 days in filing the application to set aside the ex-parte

decree. Feeling aggrieved by the order dated 19.06.2019, the

appellant-defendant is before this Court in this appeal.

2. On 29.08.2019, when this appeal came up for

admission, this Court admitted the matter on file and issued

notice to the respondent by speed post. In I.A.No.1 of 2019,

this Court granted an interim order staying the execution of

the ex-parte decree in O.S.No.106 of 2011 on the file of the

Sub Court, Neyyatinkkara, for a period of two months. The

said interim order, which was extended from time to time, is

still in force.

3. On 26.07.2019, when this appeal came up for

hearing, after arguing for sometime, the learned counsel for

the appellant sought adjournment to get instructions as to

whether the appellant, who is working at an Aided L.P.School

FAO NO. 150 OF 2019

at Mepral, had availed leave on 22.01.2013, for a period of

one week.

4. Heard the learned counsel for the appellant-

defendant and also the learned counsel for the respondent-

plaintiff.

5. The issue that arises for consideration in this

appeal is as to whether any interference is warranted on the

impugned order dated 19.06.2019 of the Sub Court,

Neyyatinkara in I.A.No.1000 of 2015 and I.A.No.1001 of

2015, whereby those applications were dismissed on a finding

that the defendant could not make out sufficient cause to

condone the delay of 1530 days in filing the application to set

aside the ex-parte decree.

6. The defendant was set ex-parte on 15.06.2013,

when O.S.No.106 of 2011 was listed for evidence before the

Sub Court, Neyyattinkara. The Sub Court decreed the suit ex-

parte on 15.06.2013 itself. In the affidavit filed in support of

the interlocutory applications, the defendant stated that he

was laid up on 15.06.2013 and as such, he could not file the

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applications in time. The defendant, who was examined as

PW1, filed proof affidavit stating that, on 22.01.2013, the date

on which the suit was listed for filing written statement, he

was laid up due to viral fever. Therefore, he could not appear

in court or engage a counsel. During cross examination, the

defendant admitted that he had engaged Adv.Satheesh

Kumar. The defendant was laid up with viral fever on

22.01.2013. He recovered from viral fever after one week.

Thereafter, he met his counsel, who failed to inform him about

the order of the court below, whereby he was set ex-parte or

even the ex-parte decree passed against him. After

considering the pleadings and also the oral testimony of the

defendant as PW1, the court below found that the defendant

had failed to make out a sufficient cause for condonation of

delay of 1530 days in filing the application to set aside the ex-

parte decree. In the impugned order dated 19.06.2019, the

court below has also placed reliance on the decisions in

Pundlik Jalam Patil (dead) by LRs v. Executive

Engineer, Jalgaon Medium Project [(2008) 17 SCC 448],

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Basawaraj and another v. Special Land Acquisition

Officer [(2013) 14 SCC 81 : AIR 2014 SC 746] and

Sosamma v. Mariyamma [2015 (4) KHC 858 : ILR 2015

(4) Ker. 290].

7. In Pundlik Jalam Patil [(2008) 17 SCC 448] the

Apex Court held that Section 5 of the Limitation Act provides

for extension of prescribed period of limitation in certain cases

and confers jurisdiction upon the Court to admit any

application or any appeal after the prescribed period if it is

satisfied that the applicant or the appellant had sufficient

cause for not preferring such application or appeal within the

prescribed period. It is true that the power the condone the

delay rest with the Court in which the application was filed

beyond time and decide whether there is sufficient cause for

condoning the delay and regularly the superior court may not

interfere with such discretion even if such error found in the

discretion so exercised by the Court. Where there is no

sufficient cause for condoning the delay, but the delay was

condoned, it is a case of discretion not being exercised

FAO NO. 150 OF 2019

judicially and the order becomes vulnerable and susceptible

for its correction by the superior Court. On the facts of the

case, the Apex Court held that, the High Court having found

that the respondent in its application made incorrect

submission that he had no knowledge of the award passed by

the reference court ought to have refused to exercise its

discretion. The Apex Court found that the High Court

exercised its discretion on wrong principles and in that view of

the matter, the exercise of the discretion in the manner done

by the High Court cannot be sustained.

8. In Basawaraj [(2013) 14 SCC 81] the Apex

Court held that, where a case has been presented in Court

beyond limitation, the applicant has to explain the Court as to

what was the 'sufficient cause', which means an adequate and

enough reason which prevented him to approach the Court

within limitation. In case a party is found to be negligent, or

for want of bonafide on his part in the facts and circumstances

of the case, or found to have not acted diligently or remained

inactive, there cannot be a justified ground to condone the

FAO NO. 150 OF 2019

delay. No Court could be justified in condoning such an

inordinate delay by imposing any condition whatsoever. The

application is to be decided only within the parameters laid

down by the Court in regard to condonation of delay. In case

there was no sufficient cause to prevent a litigant to approach

the Court on time, condoning the delay without any

justification, putting any condition whatsoever, amounts to

passing an order in violation of the statutory provisions, and it

tantamount to showing utter disregard to the legislature.

9. In Sosamma [2015 (4) KHC 858], following the

law laid down by the Apex Court in Pundlik Jalam Patil and

Basawaraj, a learned Single Judge of this Court held that

where a party is found to be negligent, or there is want of

bonafides on his part, or found to have not acted diligently or

remained inactive, there cannot be justifiable ground to

condone the delay.

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

FAO NO. 150 OF 2019

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.

11. 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:

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21.1 There should be a liberal, pragmatic, justice- oriented, 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 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. 21.2 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.

FAO NO. 150 OF 2019

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.

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.

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21.13 The State or a public body or an entity representing a collective cause should be given some acceptable latitude."

12. In Esha Bhattacharjee, after summerising 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 half-hazard 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 base 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 half-

hazard manner harbouring the notion that the courts are required to condone delay on the

FAO NO. 150 OF 2019

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.

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."

13. 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

FAO NO. 150 OF 2019

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. An application for condonation of delay

should be drafted with careful concern and no court shall deal

with such an application in a routine manner.

14. In Robin Thapa v. Rohit Dora [(2019) 7 SCC

359], a decision relied on by the learned counsel for the

appellant, the Apex Court condoned the delay in filing

application under Order IX Rule 13 of the Code of Civil

Procedure, 1908, to set aside the ex-parte decree dated

09.10.2014 of Civil Judge, Senior Division, Dehradun. That

application was filed on 02.10.2015, which was supported by

an application for condonation of delay. The trial court

condoned the delay and allowed the application to set aside

the ex-parte decree. That order was set aside by the High

Court. On the facts of the case, the Apex Court noticed that

the appellant came to be served with the notice of the

FAO NO. 150 OF 2019

execution proceedings through special messenger on

27.03.2015. Thus, the case of the appellant that he came to

know about the passing of the decree only on 17.11.2015

cannot be acted upon. In the execution of the decree, sale

deed has been executed in favour of the respondent and it is

only thereafter that despite the receipt of the notice dated

27.03.2015, the appellant has set up the case that he came to

know about the passing of decree only several months

thereafter. Considering the fact that the matter arises from a

suit for specific performance, which is undoubtedly a

discretionary relief, and since the appellant was prepared to

deposit the entire amount spent by the respondent for getting

the sale deed executed, the Apex Court found that the interest

of justice demands that subject to putting the appellant on

terms, he should be given an opportunity to contest a case.

Accordingly, the appeal was allowed and the impugned order

was set aside subject to the conditions that the appellant will

deposit a sum of Rs.67,400/- towards stamp duty and

registration charges paid by the respondent, within a period of

FAO NO. 150 OF 2019

one month from the date of judgment, in the execution court

and a further deposit of Rs.50,000/- as cost to be paid to the

respondent. A reading of the judgment of the Apex Court

would make it explicitly clear that the Apex Court has taken a

lenient view considering the fact that the suit is one for

specific performance and also the extent of delay, etc.

15. In the instant case, the appellant-defendant has

failed to show 'sufficient cause' for condonation of the

inordinate delay of 1530 days in filing the application to set

aside the exparte degree. During the course of arguments, it

was noticed that the appellant is working at an Aided L.P.

School at Mepral. On 26.07.2021, when this appeal came up

for hearing, the learned counsel for the appellant sought time

to get instructions as to whether the appellant had availed

leave on 22.01.2013 for a period of one week. Today, during

the course of arguments, the learned counsel for the

appellant, on instructions, would submit that the appellant

had not availed any leave for one week from 22.01.2013 and

as a matter of fact, he had attended duties as L.P. School

FAO NO. 150 OF 2019

teacher in the Aided L.P. School at Mepral during the said

period. Therefore, it can only be concluded that, the appellant

has chosen to file affidavits in support of the interlocutory

applications for condonation of delay and also to set aside the

ex-parte decree stating incorrect facts. The conduct of the

appellant has to be deprecated in the strongest words and we

do so. In the absence of sufficient cause shown for

condonation of the inordinate delay of 1530 days in filing the

application to set aside the ex-parte decree, the court below

cannot be found fault in rejecting I.A.Nos.1000 of 2015 and

1001 of 2015.

In the result, this appeal fails and the same is

accordingly, dismissed.

No order as to cost.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

M.R. ANITHA, JUDGE

AV/4/8