Jayalal vs Sughesh
2022 Latest Caselaw 6234 Ker

           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

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

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

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

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

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.

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

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

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.

F.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

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

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