Kerala High Court
Dr.Gracy Abraham vs Joseph And Others on 9 August, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
WEDNESDAY, THE 9TH DAY OF AUGUST 2023 / 18TH SRAVANA, 1945
F.A.O. NO. 322 OF 2010
AGAINST THE ORDER DATED 10.07.2009 IN I.A.NOS.3005 AND
3006 OF 2008 IN O.S.NO.592 OF 2006 OF THE SUB
COURT,ERNAKULAM
APPELLANT/PETITIONER/PLAINTIFF:
DR.GRACY ABRAHAM
AGED 50, W/O.ABRAHAM, PERINGATTU HOUSE,,
UDAYAMPEROOR, MANAKUNNAM VILLAGE, KANAYANNUR
TALUK.
BY ADV SRI.ABRAHAM P.GEORGE
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 JOSEPH,
AGED 72, S/O.MOOLAYIL MATHAI, MOOLAYIL HOUSE,
NADUVILAMGATTU, MAMPUZHA, KEECHERI VILLAGE,
KANAYANNUR TALUK.
2 ANTONY, AGED 69,
S/O.MOOLAYIL MATHAI, MOOLAYIL HOUSE,
NADUVILAMGATTU, MAMPUZHA, KEECHERI VILLAGE,
KANAYANNUR TALUK.
3 THOMAS, AGED 62,
S/O.MOOLAYIL MATHAI, MOOLAYIL HOUSE,
NADUVILAMGATTU, MAMPUZHA, KEECHERI VILLAGE,
KANAYANNUR TALUK.
R2 BY ADV SRI.M.MANOJKUMAR CHELAKKADAN
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR
FINAL HEARING ON 09.08.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2
F.A.O.322 of 2010
JUDGMENT
P.G. Ajithkumar, J.
The plaintiff in OS 592 of 2006 on the file of the Sub
Court, Ernakulam, is the appellant. The suit was dismissed for
default on 04.03.2008. The appellant filed I.A.No.3005 of
2008 under Order IX, Rule 9 of the Code of Civil Procedure,
1908 along with I.A.No.3006 of 2008 for condonation of delay
of 48 days in filing the former application. The Sub Court
dismissed both those petitions as per the orders dated
10.07.2009. The appellant preferred this appeal challenging
the said orders, under Order XLIII, Rule 1(c) of the Code.
2. There was a delay of three days in filing the appeal.
The delay was condoned. During the pendency of this appeal,
respondent Nos.1 and 3 expired and their legal
representatives were impleaded as additional respondents 4
to 11.
3. Despite publication of notice in the newspaper,
additional respondents did not choose to appear before this
Court.
F.A.O.322 of 2010
4. Heard the learned counsel appearing for the
appellant.
5. O.S.No.592 of 2006 was filed by the appellant
seeking a decree of specific performance of agreement for
sale dated 14.03.2006. The defendants resisted the suit by
filing written statement. The suit was scheduled for trial on
04.03.2008. On that date, the appellant failed to turn up and
therefore the suit was dismissed for default.
6. The appellant stated that the date of posting of the
case was mistakenly noted as 09.03.2008 and therefore
neither the appellant nor his counsel could appear before the
court. After dismissal of the suit, there was a proposal for
settling the dispute between the parties and the appellant
bona fide believed that there could be an amicable settlement.
Therefore, he did not soon file the application for restoration
of the suit. Since the proposal of the agreement was not
materialised, the appellant has filed I.A.Nos.3005 and 3006 of
2008.
F.A.O.322 of 2010
7. The learned Sub Judge dismissed the application
for condonation of delay as per the following order:-
"The reason for delay is expectation of settlement. But
each and every days, delay is not explained in the
affidavit. Petitioner has not mounted to the box also for
stating the reason for delay. Hence the delay cannot be
condoned. I.A. is dismissed."
8. 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.
9. In Esha Bhattacharjee v. Raghunathpur Nafar
Academy [(2013) 12 SCC 649] the Apex Court while
summarising 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
F.A.O.322 of 2010
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:
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.
21.3 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
F.A.O.322 of 2010
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.
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
F.A.O.322 of 2010
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.
21.13 The State or a public body or an entity
representing a collective cause should be given some
acceptable latitude."
[underlines supplied]
10. In Rafeek and another v. K. Kamarudeen and
another [2021 (4) KHC 34] a Division Bench of this Court
held that, 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
by the Apex Court in Esha Bhattacharjee [(2013) 12 SCC
649]. Inordinate delay, which attracts doctrine of prejudice,
F.A.O.322 of 2010
warrants strict approach, whereas, a delay of short duration
or few days, which may not attract doctrine of prejudice, calls
for a liberal delineation.
11. The period of delay in filing petition for restoration
of the suit was 48 days. Two reasons were stated in the
affidavit of the appellant, namely, the date of posting of the
case was mistakenly noted by the clerk of his counsel and that
on account of the proposal for settling the dispute amicably,
the appellant waited for a positive result. When the attempts
for settlement were failed, the appellant had filed the petition
for restoration of the suit. It is seen that the said assertions of
the appellant are probable and genuine. Considering the
period of delay, a lenient view is required to be taken in the
matter in the light of the law laid down in the aforesaid
decisions. Therefore, we hold that delay of 48 days in filing
the petition for restoration is liable to be condoned and the
suit is ordered to be restored.
12. Accordingly, we allow this appeal. On setting the
impugned orders, I.A.Nos.3005 and 3006 of 2008 are
F.A.O.322 of 2010
allowed. O.S.No.592 of 2006 on the file of the Sub Court,
Ernakulam is restored on file.
The suit is of the year 2006. Therefore, the learned Sub
Judge shall make every endeavour to dispose of the suit, as
expeditiously as possible, within a period of four months from
the date of appearance of the parties/completion of service.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
