Thankachan @ Devasi vs Jessy @ Mari
2021 Latest Caselaw 4294 Ker

C.M Appln No.1 of 2020
     in
Mat.A No. 703 of 2020
                                    1

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

        THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                                    &

              THE HONOURABLE MR.JUSTICE C.S.DIAS

  FRIDAY, THE 05TH DAY OF FEBRUARY 2021 / 16TH MAGHA,1942

                       Mat.Appeal.No.703 OF 2020

 AGAINST THE ORDER/JUDGMENT IN OP(DIV) 1035/2007 OF FAMILY
                     COURT, ALAPPUZHA


APPELLANT/COUNTER PETITIONER:

             THANKACHAN @ DEVASI
             AGED 56 YEARS
             S/O. MATHAI, PLAKKICHIRA VEEDU, WARD N0. 14,
             PALLIPURAM P.O. VALAMANGALAM CHERTHALA 688 541.

             BY ADVS.
             SRI.M.P.KRISHNAN NAIR
             SMT.RAJESWARI KRISHNAN
             SHRI.NANDAKUMAR K.
             SRI.T.D.SUSMITH KUMAR
             SMT.SEEMA KRISHNAN

RESPONDENT/PETITIONER:

             JESSY @ MARI
             AGED 46 YEARS
             S/O. ANNAMMA, THURUTHEZHATHU VEEDU, THURAVOOR
             P.O. VALAMANGALAM, CHERTHALA 688 532.

             R1   BY   ADV.   SRI.P.B.KRISHNAN
             R1   BY   ADV.   SRI.P.B.SUBRAMANYAN
             R1   BY   ADV.   SRI.SABU GEORGE
             R1   BY   ADV.   SRI.MANU VYASAN PETER

     THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
01-02-2021,  THE   COURT  ON   05-02-2021  DELIVERED  THE
FOLLOWING:
 C.M Appln No.1 of 2020
     in
Mat.A No. 703 of 2020
                                  2



Mat.A 703 of 2020



                             JUDGMENT

C.S.Dias,J.

In light of the order dated 5.2.2021 dismissing

C.M Appln No.1 of 2020 to condone the delay, the

Mat.Appea stands dismissed. All the pending

Interlocutory Applications will also stand dismissed.

Sd/-A.MUHAMED MUSTAQUE JUDGE

ma/03.02.2021 Sd/-C.S.DIAS, JUDGE

/True copy/ C.M Appln No.1 of 2020 in Mat.A No. 703 of 2020

A.MUHAMED MUSTAQUE & C.S.DIAS, JJ.

----------------------------- C.M Appln No.1 of 2020 in Mat.A No. 703 of 2020

------------------------------- Dated this the 5th February, 2021.

ORDER

C.S.Dias,J.

The application is filed to condone the delay of

4280 days (11 years and 8 months) in filing the

Mat.Appeal.

2. The petitioner has filed the Mat.Appeal

challenging the judgment and decree in O.P(Div)

No.1035/2007 of the Family Court, Alappuzha which

was filed by the respondent - now the divorced wife of

the petitioner. The Family Court by the impugned

judgment and decree dated 24.11.2008, allowed the

original petition by dissolving the marriage between

the petitioner and the respondent and allowed the

respondent to recover an amount of Rs.1,00,000/- and C.M Appln No.1 of 2020 in Mat.A No. 703 of 2020

17 sovereigns of gold ornaments or its value thereof

with costs from the petitioner.

3. Aggrieved by the said judgment and decree,

the Matrimonial Appeal was filed with an application to

condone the delay.

4. In the affidavit filed in support of the

application to condone the delay, the petitioner has,

inter alia, contended that although the judgment and

decree was passed on 24.11.2008, the respondent did

not take any steps for realising the amount or

approached the petitioner directly or through her

Advocate for 11 years and 8 months. It was at the fag

end of the limitation period to file the execution

petition, that the respondent has filed the execution

petition claiming an amount of Rs.4,43,000/-. The

petitioner received a copy of the Execution Petition on

31.8.2020 directing him to appear before the Family

Court. It was only then that he became aware of the C.M Appln No.1 of 2020 in Mat.A No. 703 of 2020

passing of the decree and filing of the execution

petition. The petitioner immediately filed his

objection to the execution petition and an application

to deposit the decretal amount, under protest and to

raise the attachment before judgment over his

property. The Family Court has passed the judgment

and decree by an accidental slip and omission which

was neither intentional nor deliberate, but due to the

failure of the respondent to disclose the actual

position. Therefore, the delay in filing the appeal may

be condoned, otherwise the petitioner would suffer

irreparable loss and injury. The petitioner had not

received any notice from the Family Court and he had

not engaged any Advocate to appear on his behalf,

but the respondent managed to see that some Advocate

appeared on his behalf and he was set ex-parte. The

respondent has perpetrated fraud and misrepresented

facts and made Adv. (late) Sankarankutty to appear on C.M Appln No.1 of 2020 in Mat.A No. 703 of 2020

behalf of the petitioner by suppressing the actual facts

and producing false and frivolous documents. The

respondent in collusion and connivance with the

Advocate managed to obtain the ex parte decree. The

act of the respondent is a clear case of fraud, cheating,

misrepresentation and suppression of material facts.

Hence, the delay in filing the appeal may be condoned

and the ex-parte decree may be set aside.

5. The respondent filed a counter affidavit to

the application, inter alia, contending that she is

living in penury at the mercy of her siblings. She is

eking her livelihood from the income derived from

her domestic animals. The petitioner has not made

out any sufficient cause to condone the inordinate

delay of 4280 days in filing the appeal. The filing of

the appeal is without any bona fides and is an after

thought. There is serious laches and negligence on

the part of the petitioner. The petitioner has already C.M Appln No.1 of 2020 in Mat.A No. 703 of 2020

filed an application to set aside the ex parte decree

before the Family Court, along with an application to

condone the delay. As the petitioner has chosen the

remedy available to him as contemplated under law,

the appellant cannot simultaneously prosecute the

appeal before this Court. The respondent has

vehementally denied the allegation that the appellant

was not aware of the pendency of the proceedings

before the Family Court and that he had not

authorised any Advocate to appear on his behalf. The

respondent has produced the passport of the

petitioner as Annexure-A which would reveal that the

petitioner had returned from U.A.E on 30.4.2007 and

went back only on 29.6.2007. Thereafter, he returned

to Kerala on 15.9.2007 and went back to U.A.E on

16.1.2008. Finally, the petitioner returned to Kerala on

8.4.2008. The original petition was filed by the

respondent on 3.12.2007, during the period the C.M Appln No.1 of 2020 in Mat.A No. 703 of 2020

petitioner was in India. The original petition was

allowed on 24.11.2008. The petitioner received notice

in the original petition and appeared through counsel.

It was only because he did not appear for counselling

or file counter affidavit in the original petition, the

Family Court set him ex parte. The petitioner cannot

attribute the cause of delay and laches because the

respondent filed the execution petition after 11 years

and 8 months. It was only because the respondent

came to learn that the petitioner was taking hasty

steps to alienate the property, which was under

attachment, that the respondent filed the execution

petition. There is wilful laches on the part of the

appellant in filing the appeal with an inordinate delay

of 4280 days. Hence, the application may be

dismissed.

6. The petitioner has filed a reply affidavit to the

counter affidavit filed by the respondent, refuting the C.M Appln No.1 of 2020 in Mat.A No. 703 of 2020

allegations in the counter affidavit. He has admitted

that along with his objection to the execution petition,

he had filed I.A No.2/2020 under Order IX, Rule 13 of

the Code of Civil Procedure, to set aside the ex-parte

decree. He had also filed I.A No.1/2020 to condone

the delay in filing I.A No.2/2020. It is after the filing

of the above application that he has filed the appeal

before this Court. Later, with the permission of the

Family Court, the petitioner withdrew I.A Nos.1 and 2

of 2020. The petitioner is ready and willing to pay the

entire decretal amount with interest, in order to lift

the attachment. The petitioner has deposited

Rs.4,50,750/- in Fixed Deposit. On the basis of the

deposit made, the learned Judge of the Family Court

has lifted the attachment and the same has been

intimated to the concerned Sub Registrar Office. The

notice that was sent from the Family Court was

returned undelivered with endorsement ' addressee C.M Appln No.1 of 2020 in Mat.A No. 703 of 2020

out of India'. Therefore, summons has not been served

on the petitioner. The petitioner has not denied the

entries on his passport. He hence prayed that the

counter affidavit may be discarded and the application

may be allowed.

7. Heard Sri.M.P.Krishnan Nair, the learned

counsel appearing for the petitioner and Sri. Sabu

George, the learned counsel appearing for the

respondent.

8. The sole question that emerges for

consideration in this application is whether the

petitioner has made out sufficient cause to condone the

delay of 4280 days in filing the appeal.

9. In a recent decision, a three Judge Bench of

the Hon'ble Supreme Court in University of Delhi v.

Union of India and others [2019 KHC 7261] has held

thus:

"20.xxxxxxxxxxxxxxxxxx C.M Appln No.1 of 2020 in Mat.A No. 703 of 2020

Even in such case the condonation of long delay should not be automatic since the accrued right or the adverse consequence to the opposite party is also to be kept in perspective. In that background while considering condonation of delay, the routine explanation would not be enough but it should be in the nature of indicating "sufficient cause" to justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the Courts based on the fact situation.

xxxxxxxxxx".

10. In Pandlik Talam Patil vs Talgaou

Medium Project [(2008) 17 SCC 448], the Hon'ble

Supreme Court has observed as follows:

"17. .....The evidence on record suggests neglect of its own right for long time in preferring appeals. The court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The court helps those who are vigilant and 'do not slumber over their rights."

"29. It needs no restatement at our hands that the object for fixing time limit for litigation is based on public policy fixing a life span for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy."

11. Again in Maniben Devraj Shah v. Municipal

Corporation of Brihan Mumbai [(2012) 5 SCC

157] the Hon'ble Supreme Court has held thus: C.M Appln No.1 of 2020 in Mat.A No. 703 of 2020

"24. What colour the expression "sufficient cause" would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If on the other hand, the explanation given by the application is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay".

12. The above position has been reiterated by the

Hon'ble Supreme Court in Esha Bhattacharjee v.

Managing Committee of Raghunathpur Nafar

Academy and Others [(2013) 12 SCC 649] by holding

that:

(i) There is a distinction between inordinate delay and a delay of short duration of 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.

(ii) 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.

C.M Appln No.1 of 2020 in Mat.A No. 703 of 2020

(iii) 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."

13. Therefore, the law is succinctly laid down in

the afore-cited precedents that while considering an

application for condonation of delay, a routine

explanation would not be enough in the nature of

indicating sufficient cause to justify the delay which

will depend on the back drop of each issue and which

will have to be weighed carefully by the Courts based

on the fact situation, and in the case of inordinate

delay a strict approach is warranted and that "delay

defeats equity".

14. The sheet-anchor of the petitioner in the

affidavit in support of the application was that he was

unaware that the original petition was instituted by

the respondent. It is only on receipt of the summons in

the execution proceedings that he became aware of C.M Appln No.1 of 2020 in Mat.A No. 703 of 2020

the ex-parte decree passed against him. In the said

circumstances, a delay of 4280 has occurred in filing

the appeal.

15. On a perusal of the impugned judgment and

decree, it is clearly mentioned in paragraph 3 that

notice was served on the petitioner and he appeared

through counsel. However, he did not attend

counselling or file counter affidavit. Consequently, the

Family Court declared him ex-parte.

16. The specific contention of the petitioner in the

affidavit is that the respondent clandestinely made

Advocate (late) Sankarankutty to appear on behalf of

the petitioner, who produced false and frivolous

documents before the Family Court and thereby the ex-

parte decree was passed.

17. Absolutely no material has been produced

before this Court to substantiate the grave allegation.

18. Admittedly, the petitioner had filed I.A Nos.1 C.M Appln No.1 of 2020 in Mat.A No. 703 of 2020

& 2 of 2020 before the Family Court to set aside the ex-

parte decree and to condone the delay in filing the

application. For reasons best known to the petitioner,

he withdrew the applications after the filing of the

appeal. The allegations averred by the petitioner in

the affidavit, regarding the collusion and connivance

between his Advocate and the respondent, which are

grave in nature, are not proved or substantiated before

this Court. It was for the petitioner to have

prosecuted I.A Nos.1 &2 of 2020 before the Family

Court and established with authentic material the

alleged collusion and connivance between the

respondent and his Advocate. It is not possible for this

Court to delve into the allegation regarding fraud,

cheating, misrepresentation and suppression of

material facts on the basis of the pleadings of the

respective parties by way of affidavits. Therefore, we

accept the finding of the Family Court in paragraph 3 C.M Appln No.1 of 2020 in Mat.A No. 703 of 2020

of the impugned judgment.

19. It is admitted by the petitioner that before

the institution of the appeal, he preferred I.A Nos.1

and 2 of 2020 before the Family Court. At least from

that period, he was aware about the ex-parte decree.

Other than for the mere assertion regarding fraud,

cheating, mis-representation etc, the petitioner has

not stated any sufficient reason or cause to condone

the inordinate delay of 4280 days. We are not inspired

by the allegations averred in the affidavit to condone

the inordinate delay. As the delay is grossly inordinate,

we are obliged to take a strict view in the matter as

observed in Esha Bhattacharjee (supra). The right

of the respondent has crystalised over the passage of

more than a decade and the execution proceedings

has concluded, as the petitioner has deposited the

decretal amount and the attachment has been lifted.

Also, the petitioner is not aggrieved by the dissolution C.M Appln No.1 of 2020 in Mat.A No. 703 of 2020

of the marriage, but he is more concerned regarding

the monetary relief granted in favour of the

respondent. If the delay is condoned at this stage and

the appeal is admitted, it would certainly cause

substantial prejudice, hardship and injustice to the

hapless respondent who is stated to be in penury. We

hold that there is willful laches and negligence on the

part of the petitioner in filing the appeal after 4280

days. In the said circumstances, we are not inclined to

condone the delay of 4280 days in filing the appeal.

Resultantly, the application is dismissed.

Sd/-A.MUHAMED MUSTAQUE JUDGE

ma/03.02.2021 Sd/- C.S.DIAS, JUDGE /True copy/ C.M Appln No.1 of 2020 in Mat.A No. 703 of 2020

APPENDIX PETITIONER'S/S EXHIBITS:

ANNEXURE A1 TRUE COPY OF THE PASSPORT OF THE APPELLANT.

ANNEXURE A2 TRUE COPY OF THE ATTACHMENT ORDER DATED 27.08.2020 WITH SCHEDULE IN EA NO. 35/2020 IN EP NO. 39/2020 OF THE LEARNED FAMILY COURT.

ANNEXURE A3 TRUE COPY OF THE EXECUTION PETITION NO.

39/2020 FILED BY THE RESPLENDENT IN THE FAMILY COURT ALAPPUZHA.

ANNEXURE A4 TRUE COPY OF THE OBJECTION FILED BY THE APPELLANT BEFORE THE FAMILY CO RUT IN THE EXECUTION PETITION.

ANNEXURE A5 TRUE COPY OF THE PETITION FIELD BY THE APPELLANT FOR SETTING ASIDE THE EX PRATE JUDGMENT AND DECREE BEFORE THE LEA REND FAMILY COURT, ALAPPUZHA.

ANNEXURE A6 TRUE COPY OF THE PETITION FIELD BY THE APPELLANT FOR ALLOWING HIM TO DEPOSIT THE DECREEAL AMOUNT, UNDER PROTEST.