Kerala High Court
Vasu vs Soni on 5 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
OP(C) NO. 1768 OF 2016
AGAINST THE JUDGMENT IN OS 185/2012 OF ADDITIONAL SUB
COURT,NORTH PARAVUR, ERNAKULAM
PETITIONER:
VASU
AGED 74 YEARS
AGED 74 YEARS, S/O. RAMAN, MANGADATHU HOUSE,
VADAKKUMBHAGOM KARA, MANJAPRA VILLAGE,
ERNAKULAM.
BY ADV SRI.PAUL K.VARGHESE
RESPONDENTS:
1 SONI
W/O. LATE MURALEEDHARAN, RESIDING AT MUTTATHU
HOUSE, ELANGAVAM, VARAPPETTY VILLAGE,
KOTHAMANGALAM TALUK-686 691.
2 KEERTHANA
D/O. MURALEEDHARAN, RESIDING AT VARAPPETTY
VILLAGE,KOTHAMANGALAM TALUK, A MINOR
REPRESENTED BY HER NEXT FRIEND AND MOTHER
SONI, W/O. LATE MURALEEDHARAN, RESIDING AT
MUTTATHU HOUSE, ELANGAVAM, VARAPPETTY VILLAGE,
KOTHAMANGALAM TALUK-686 691.
BY ADVS.
P.VISWANATHAN (SR.)
JAYASANKAR.G
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
05.10.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P(C)No.1768/2016 2
K.BABU, J.
===========================
OP(C) No.1768 of 2016
===========================
Dated this the 5th day of October, 2021
JUDGMENT
The challenge in this OP, filed under Section 227 of the
Constitution of India, is against the common order dated
05.07.2016 in I.A.No.3239 of 2013 and I.A.No.3240 of 2013 in
O.S.185 of 2012 of the Additional Sub Court, North Paravur.
2. The petitioner instituted O.S.No.185 of 2012 before the
Additional Sub Court, North Paravur against one Shri
Muraleedharan, seeking a decree for specific performance of an
agreement for sale in respect of his one half share in the landed
property having an extent of 4.29 ares with a building therein in
survey Nos.393/3A and 393/3B of Manjapra Village, Aluva Taluk,
Ernakulam District. Shri Muraleedharan, the defendant, entered
appearance and filed written statement. As he failed to contest
the case, the suit was decreed exparte by way of judgment and
decree dated 10.10.2012. Thereafter, the petitioner filed
I.A.No.1077 of 2013 under Section 28(3)(a) of the Specific Relief
Act, 1963 before the court below. Notice was served on Shri
Muraleedharan in that Interlocutory Application. Subsequently,
Shri Muraleedharan died on 14.07.2013.
3. The wife and daughter of Shri Muraleedharan
(respondents herein) filed I.A.No.3239 of 2013 and I.A.No.3240
of 2013, petitions seeking to set aside the exparte decree and to
condone the delay in filing the application to set aside the
exparte decree respectively. By way of a common order dated
05.07.2016, the Trial Court allowed the applications on payment
of Rs.4000/- as costs to the petitioner/plaintiff.
4. Being aggrieved by the order allowing I.A.No. 3239 of
2013 and I.A.No.3240 of 2013, the plaintiff has approached this
court invoking the jurisdiction of this Court under Article 227 of
the Constitution of India.
5. Heard the learned counsel for the petitioner and the
learned counsel for the respondents.
6. The learned counsel for the petitioner submitted that
the respondents failed to establish sufficient cause for setting
aside the exparte decree and to condone the delay in preferring
the application to set aside the exparte decree. The learned
counsel further contended that the court below has not recorded
any reasons for allowing the applications.
7. The learned counsel for the respondents, per contra,
submitted that the respondents could establish sufficient cause
for condoning the delay in preferring the application to set aside
the exparte decree under Order IX Rule 13 of the Code of Civil
Procedure.
8. The challenge raised by the petitioner is that the court
below has not recorded any reason for passing the impugned
common order. The operative portion of the impugned common
order is extracted below:-
" However, what the assertions show that they
have a strong contestable case. It is true that a long
period i.e.407 days has passed since the decree was
passed. However, considering all the above aspect
reasonable cost will redress the grievance of the
respondent. Ends of justice demand favourable order
in favour of the petitioners.
In the result, both the IAs are allowed on
condition of payment of cost of Rs.4000/- to the
respondent within 15 days from today. Call on for
report on compliance".
9. On a perusal of the above extracted operative portion of
the impugned order, it is seen that the court below has found that
the respondents have a strong contestable case and hence the
delay can be condoned. There is no finding as to whether the
respondents have established sufficient cause to condone the
delay in moving the application to set aside the exparte decree.
10. It is well settled that the Law of Limitation is founded
on public policy to ensure that the parties to a litigation do not
resort to dilatory tactics and seek legal remedy without delay. In
an application filed under Section 5 of the Limitation Act, the
Court has to condone the delay, if sufficient cause is shown.
Adopting a liberal approach in condoning the delay is one of the
guiding principles, but such liberal approach cannot be equated
with a licence to approach the court-at-will disregarding the time
limit fixed by the relevant statute. The acts of negligence or
inaction on the part of a litigant do not constitute sufficient cause
for condonation of delay. In the matter of condonation of delay,
it is settled that sufficient cause is required to be shown, thereby
explaining the sequence of events and the circumstances that led
to the inordinate delay.
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.
12. 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.
13. Going by the impugned order, the trial court has not
recorded any finding as to whether the respondents have
established sufficient cause for condoning the delay of 407 days.
14. On a perusal of the affidavit filed in support of the
application seeking condonation of delay, the respondents
pleaded that the husband of the first respondent, who was the
defendant in the original suit, was facing financial difficulties and
because of the inability to perform the commitments undertaken
by him in his business, he was mentally depressed and not in a
position to face the people and he even kept away from the
house and native place. She had also stated that her husband
was totally in an embarassing situation and in a mentally
depressed mood and due to such heavy depression, he suffered a
severe cardiac attack and died on 14.07.2013.
15. The first respondent has also pleaded that the
document, on the basis of which the decree was obtained, was a
fabricated one.
16. On the other hand, the petitioner has raised the
contention that the attempt of the respondents is to delay the
execution of the decree.
17. The court below has not considered the merit of the
rival contentions on the question whether the respondents have
established sufficient cause in condoning the delay.
18. There had been no effectual adjudication of the lis in
the court below. Hence this court is of the view that the parties
are to be relegated to the court below for agitating the issue as
to whether the respondents herein have established sufficient
cause for condoning the delay, for which, the order impugned is
liable to be set aside.
19. In the result, the common order dated 05.07.2016 in
I.A.No.3239 of 2013 and I.A.No.3240 of 2013 is set aside. The
Interlocutory Applications are remitted to the court below for
consideration afresh. The court below will dispose of the
applications, within a period of two months from the date of
receipt of a certified copy of this judgment, after affording
sufficient opportunity of hearing to both sides.
The Original Petition is disposed of as above.
Sd/-
K.BABU, JUDGE
lgk
APPENDIX OF OP(C) 1768/2016
PETITIONER EXHIBITS
EXHIBIT P1 A COPY OF IA NO.3240/2013 IN OS
NO.185/2012 OF THE ADDITIONAL SUB
COURT, NORTH PARAVUR, DATED
2.12.2013.
EXHIBIT P2 A COPY OF IA NO.3239/2013 IN OS
NO.185/2013 OF THE ADDITIONAL SUB
COURT, NORTH PARAVUR DATED 2.12.2013.
EXHIBIT P3 A COPY OF THE COUNTER AFFIDAVIT IN IA
NO.3240/2013 IN OS NO.185/2012 OF THE
SUB COURT, NORTH PARAVUR, DATED
15.7.2014.
EXHIBIT P4 A COPY OF THE COMMON ORDERS IN IA
NO.3229/2014 AND IA NO.3240/2014 OF
THE ADDITIONAL SUB COURT, NORTH
PARAVUR, DATED 6.7.2016.
