Kerala High Court
Cherthala. The Above ... vs Smt.Arya Balachandran on 3 February, 2021
A.HARIPRASAD & P.V.KUNHIKRISHNAN, JJ.
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F.A.O. No.18 of 2019
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Dated this the 3rd day of February, 2021
JUDGMENT
KUNHIKRISHNAN, J
This appeal is filed challenging the order dated 9.10.2018 in
I.A.No.103 of 2016 in O.S No.28 of 2010 on the file of Sub Court,
Cherthala. The above interlocutory application was filed by the
appellant, who is the defendant in O.S No.28 of 2010, to set
aside the ex parte decree dated 13.8.2010 passed in the above
suit, after condoning the delay of 1958 days in filing the said
petition.
2. The brief facts are like this:
The respondent/plaintiff filed O.S.No.28 of 2010 against the
appellant for realisation of money. The suit was decreed ex parte
on 13.8.2010. Subsequently, E.P No.136 of 2012 was filed
by the respondent herein on 12.10.2012 to execute the decree.
According to the appellant/defendant, her husband was working
abroad. They engaged Advocate Thomas Joseph for defending
the case. There was no positive information from the side of the
Advocate about the proceedings in the suit. According to the
appellant, she and her husband were under the bonafide belief
that the Advocate would prosecute the case properly. When the
Execution Petition was posted for sale of the property, the
appellant came to know about the ex parte decree, and
accordingly, the present petition was filed to set aside the ex
parte decree. There is a delay of 1958 days in filing the petition
to set aside the decree. According to the appellant/plaintiff, the
delay is not due to the laches on her part. Hence she prayed for
setting aside the decree after condoning the delay.
3. The respondent/plaintiff filed a counter affidavit disputing
the contents of the above petition. The respondent contended
that the petition is filed after a lapse of more than five years
from the date of the decree. The respondent contended that the
irresponsibility of the counsel is not a ground to set aside the
decree. The respondent submitted that on 8.4.2010, Advocate
Thomas Joseph appeared for the appellant and sought time for
filing the written statement in the suit. Since the appellant did
not file the written statement on two posting dates, the suit was
decreed on 13.8.2010. On 12.10.2012 respondent filed
E.P.No.136 of 2012. In the Execution Petition also, the appellant
appeared through the very same counsel. The respondent
submitted that Advocate Thomas Joseph appeared for the
appellant in E.P for more than 15 postings. According to the
respondent, there is no explanation as to why the appellant did
not enquire about the case for more than five years. The
respondent submitted that there is willful laches on the part of
the appellant in conducting the case.
4. To substantiate the case, PW1 and PW2 were examined
on the side of the appellant. No evidence was adduced from the
side of the respondent. Ext C1 was also marked. After going
through the evidence and documents, the lower Court dismissed
the petition. Aggrieved by the above, this appeal is filed.
5. Heard the counsel for the appellant and the respondent.
6. The counsel for the appellant submitted that this is a case
in which the Advocate who appeared for the appellant before the
lower Court gave evidence before the Court conceding that he
committed a mistake. The counsel submitted that even though
there is more than five years of delay in filing the petition, the
word "sufficient cause" under Section 5 of the Limitation Act
should be given a liberal construction to advance substantial
justice. According to the counsel, in every case of delay, there
will be some lapse on the part of the litigant concerned. That
alone is not enough to turn down his plea and shut the door
against him. The counsel relied the judgment of the apex court in
N.Balakrishnan v M. Krishnamurthy (1998 KHC 1163).
According to the counsel, in the light of the evidence of PW1 and
PW2, sufficient cause to condone the delay is established by the
appellant/plaintiff. The counsel submitted that the petition to set
aside the ex parte decree may be allowed on any terms.
7. The counsel for the respondent submitted that there is
absolutely no explanation for condoning the huge delay in filing
the petition to set aside ex parte decree. The counsel submitted
that the suit was decreed on 13.8.2010 and the Execution Petition
was filed only on 4.2.2016. The counsel submitted that the judgment
debtor had received Order 21 Rule 22 C.P.C notice in the execution
petition on 31.3.2013. He also submitted that the judgment debtor
received Order 21 Rule 66 C.P.C notice on 25.7.2013. According to the
counsel, PW1 suppressed the receipt of Rule 22 and Rule 66
notices in the Petition filed under O IX R 13 CPC. The counsel
submitted that the delay in filing the petition to set aside ex
parte decree is not at all explained by the appellant and there is
no bonafides in the petition filed by the appellant to set aside the
ex parte decree. According to the counsel, in the Execution
Petition, the sale was conducted, and the property was purchased
by the decree holder. It is also submitted that the sale is also
confirmed. At this distance of time, this Court may not interfere
with the impugned order in this appeal, is the submission of the
counsel.
8. For the proper disposal of this appeal, the following dates
are important.
1 Judgment and decree in 13/8/2010
O.S.No. 28 of 2010
2 E.P.136 of 2012 filed 12/10/12
3 Order 21 Rule 22 CPC notice 31/01/2013
received by JD
4 The JD appeared in the 12/02/13
Execution Petition
5 Order 21 Rule 66 notice 25/7/2013
received by JD
6 The petition under Order IX 22/1/2016
Rule 13 CPC
7 The order passed in the 09/10/18
petition filed under Order IX
Rule 13 CPC
9. Admittedly, in the Execution Petition, the sale was ordered
and the decree holder, who is the respondent herein, purchased
the property. The sale is also confirmed. The order impugned in
this appeal was passed in a petition to set aside the ex parte
decree along with a prayer to condone the delay of 1958 days in
filing the said petition. We perused the petition filed by the
appellant along with the evidence adduced by the
appellant/plaintiff. A reading of the evidence of PW1, who is the
appellant herein, it is clear that she shift the entire responsibility
for the delay in filing the petition to set aside the decree on PW2,
the Advocate, who appeared for her in the suit and in the
Execution Petition. We perused the evidence of PW2. PW2 indeed
accepted the responsibility for the delay in filing the petition. But
we cannot believe the evidence of PW2 in toto. From the
evidence, it is clear that PW2 is a lawyer having good practice.
This Court can't accept the evidence of PW2 to the effect that,
when an ex parte decree was passed by the Court below, on
13.8.2010, he did not inform the same to his client till 2016
especially when he himself, admittedly appeared in the Execution
Petition also for the appellant. Simply because a lawyer gave
evidence before the Court, we cannot accept his case in toto. The
lawyers are indeed the officers of the Court. But when they give
evidence before the Court of law as a witness, this Court can
treat the lawyer only as a witness and not an officer of the Court.
When a lawyer represents his client in a Court of law, the Court
can believe the words of the lawyer because he is an officer of
the Court. But when the lawyer is giving evidence as a witness,
the court should appreciate his evidence just like any other
witness. In this case, admittedly ex parte decree was passed on
13.8.2010. A notice was received by the appellant in the
Execution Petition as evident by the endorsement in Ext C1. Ext
C1 was entrusted to PW2, the lawyer by PW1 through another
person. It is also an admitted case that PW2, the lawyer,
appeared for the appellant in the Execution Petition continuously
for about 15 postings. A perusal of the evidence of PW2 the
lawyer, it is clear that there is no serious objections to these
admitted facts. When a lawyer appeared for his client in an
Execution Petition continuously for about 15 postings, this Court
cannot accept the case of the appellant that she was not aware
of the ex parte decree based on which the above Execution
Petition was filed. We do not want to make any observation about
the conduct of the lawyer in this case. We leave it there. But this
is not a fit case in which this Court can condone the delay of five
years and five months to set aside an ex parte decree.
10. The counsel for the appellant relied the judgment of the
Apex Court in N.Balakrishnan's case (supra). The relevant
portion of the above judgment is extracted hereunder:
9. It is axiomatic that condonation of delay is a matter
of discretion of the Court. S.5 of the Limitation Act
does not say that such discretion can be exercised only
if the delay is within a certain limit. Length of delay is
no matter acceptability of the explanation is the only
criterion. Sometimes delay of the shortest range may
be uncondonable due to want of acceptable
explanation whereas in certain other cases delay of
very long range can be condoned as the explanation
thereof is satisfactory. Once the Court accepts the
explanation as sufficient it is the result of positive
exercise of discretion and normally the superior Court
should not disturb such finding, much less in revisional
jurisdiction, unless the exercise of discretion was on
wholly untenable grounds or arbitrary or perverse. But
it is a different matter when the first Court refuses to
condone the delay. In such cases, the superior Court
would be free to consider the cause shown for the
delay afresh and it is open to such superior Court to
come to its own finding even untrammeled by the
conclusion of the lower Court.
10. The reason for such a different stance is thus :The
primary function of a court is to adjudicate the dispute
between the parties and to advance substantial justice.
Time limit fixed for approaching the Court in different
situations is not because on the expiry of such time a
bad cause would transform into a good cause.
11. Rules of limitation are not meant to destroy the
right of parties. They are meant to see that parties do
not resort to dilatory tactics, but seek their remedy
promptly. The object of providing a legal remedy is to
repair the damage caused by reason of legal injury.
Law of limitation fixes a life span for such legal remedy
for the redress of the legal injury so suffered. Time is
precious and the wasted time would never revisit.
During efflux of time newer causes would sprout up
necessitating newer persons to seek legal remedy by
approaching the courts. So a life span must be fixed
for each remedy. Unending period for launching the
remedy may lead to unending uncertainty and
consequential anarchy. Law of limitation is thus
founded on public policy. It is enshrined in the maxim
Interest reipublicae up sit finis litium (it is for the
general welfare that a period be put to litigation).
Rules of limitation are not meant to destroy the right
of the parties. They are meant to see that parties do
not resort to dilatory tactics but seek their remedy
promptly. The idea is that every legal remedy must be
kept alive for a legislatively fixed period of time.
12. A court knows that refusal to condone delay would
result in foreclosing a suitor from putting forth his
cause. There is no presumption that delay in
approaching the Court is always deliberate. This Court
has held that the words "sufficient cause" under S.5 of
the Limitation Act should receive a liberal construction
so as to advance substantial justice vide Shakuntala
Devi Jain v. Kuntal Kumari, AIR 1969 SC 575 and State
of West Bengal v. The Administrator, Howrah
Municipality, AIR 1972 SC 749.
13. It must be remembered that in every case of delay
there can be some lapse on the part of the litigant
concerned. That alone is not enough to turn down his
plea and to shut the door against him. If the
explanation does not smack of mala fides or it is not
put forth as part of a dilatory strategy the Court must
show utmost consideration to the suitor. But when
there is reasonable ground to think that the delay was
occasioned by the party deliberately to gain time then
the Court should lean against acceptance of the
explanation. While condoning delay the Court should
not forget the opposite party altogether. It must be
borne in mind that he is a loser and he too would have
incurred quite a large litigation expenses. It would be a
salutary guideline that when Courts condone the delay
due to laches on the part of the applicant the Court
shall compensate the opposite party for his loss.
14. In this case explanation for the delay set up by the
appellant was found satisfactory to the Trial Court in
the exercise of its discretion and the High Court went
wrong in upsetting the finding, more so when the High
Court was exercising revisional jurisdiction.
Nonetheless, the respondent must be compensated
particularly because the appellant has secured a sum
of Rs. Fifty thousand from the delinquent Advocate
through the Consumer Disputes Redressal Forum. We,
therefore, allow these appeals and set aside the
impugned order by restoring the order passed by the
Trial Court but on a condition that appellant shall pay a
sum of Rupees Ten thousand to the respondent (or
deposit it in this Court) within one month from this
date.
11. After going through the above judgment, we are more
convinced that the present case is not a fit case in which the
delay of more than 5 years in filing the petition to set aside the
ex parte decree can be allowed. Of course, the rule of litigation is
not meant to destroy the right of parties. But the Supreme Court
also observed that when there is reasonable ground to think that
the delay was occasioned by the party deliberately to gain time,
then the Court should lean against acceptance of the explanation.
The Apex Court observed that while condoning the delay, the
Court should not forget the opposite party altogether. It is stated
by the Apex Court that it must be born in mind that he is a loser
and he too would have incurred quite large litigation expenses.
12. Considering the entire facts and circumstances of this
case, we are of the firm view that there is no illegality in the
impugned order by which the lower Court dismissed the petition
filed by the appellant under Order IX Rule 13 Civil Procedure
Code.
Therefore, this appeal is dismissed. No cost.
A. HARIPRASAD,
JUDGE.
P.V.KUNHIKRISHNAN,
JUDGE
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 03RD DAY OF FEBRUARY 2021 / 14TH MAGHA,1942
FAO.No.18 OF 2019
AGAINST THE ORDER IN OS 28/2010 OF SUB COURT, CHERTHALA
APPELLANT:
JINCY JINU ALIAS ASHA JINE,
AGED 35 YEARS
W/O.JINU, PALLATH HOUSE, NORTH KALAMASSERY.P.O.,
EDAPPALLY VILLAGE, KANAYANNUR TALUK, ERNAKULAM
DISTRICT.
BY ADVS.
DR.V.N.SANKARJEE
SRI.V.N.MADHUSUDANAN
SRI.S.SIDHARDHAN
SMT.R.UDAYA JYOTHI
SRI.M.M.VINOD
SMT.M.SUSEELA
SRI.SUDHAKARAN V.
SMT.ARYA BALACHANDRAN
SMT. KEERTHI B. CHANDRAN
RESPONDENT:
NISHA,
AGED 33 YEARS
W/O.JIBIN, PUNNAKKAL HOUSE, THANNEERMUKKOM, NORTH
VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT-688527.
R1 BY ADV. SRI.P.B.KRISHNAN
R1 BY ADV. SRI.P.M.NEELAKANDAN
R1 BY ADV. SRI.P.B.SUBRAMANYAN
R1 BY ADV. SRI.SABU GEORGE
R1 BY ADV. SRI.MANU VYASAN PETER
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 21-
01-2021, THE COURT ON 03-02-2021 DELIVERED THE FOLLOWING:
