Kerala High Court
K V Kumar Ajith vs Aarcha on 18 January, 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 18TH DAY OF JANUARY 2023 / 28TH POUSHA, 1944
MAT.APPEAL NO. 676 OF 2022
AGAINST THE ORDERS DATED 06.07.2022 IN I.A NO.1585 OF 2022
AND I.A.NO.1586 OF 2022 IN O.P.NO.46 OF 2013 OF FAMILY
COURT,ERNAKULAM
APPELLANT/PETITIONER/RESPONDENT:
K V KUMAR AJITH
AGED 59 YEARS
S/O.VELAPPAN,
RESIDING AT KUPPUKULANGARA HOUSE, KOOVAPPADAM,
KOCHI,ERNAKULAM DISTRICT, PIN - 682002
BY ADV.
V.VISAL AJAYAN
RESPONDENTS:
AARCHA
AGED 24 YEARS
D/O.K. V. KUMAR AJITH
CURRENTLY RESIDING IN MALLUPARAMBIL HOUSE,
ERNAKULAM DISTRICT
PIN - 682016
BY ADVS.
R.UMASANKAR
R.RAMESH(R-771)
THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 23.12.2023, THE COURT ON 18.01.2023
DELIVERED THE FOLLOWING:
2
Mat.Appeal No.676 of 2022
JUDGMENT
P.G.Ajithkumar, J.
The orders of the Family Court, Ernakulam dated
06.07.2022 in I.A.Nos.1585 of 2022 and 1586 of 2022 in O.P
No.46 of 2013 are under challenge in this appeal filed under
Section 19(1) of the Family Courts Act, 1984.
2. There was a delay of 16 days in filing this appeal.
As per the order in C.M.Application No.1 of 2022, the delay
was condoned. Heard the learned counsel appearing for the
petitioner and the learned counsel appearing for the
respondent.
3. The respondent is the daughter of the appellant.
The respondent filed O.P No.46 of 2013 claiming maintenance
and Rs.20 lakhs towards her educational and marriage
expenses. The appellant remained ex parte and accordingly, a
decree was passed on 21.01.2017. The appellant filed
I.A.No.1585 of 2022 under Section 5 of the Limitation Act,
1963 for condonation of delay of 1485 days in filing I.A
No.1586 of 2022 which was one for setting aside ex parte
decree dated 21.01.2017. The respondent filed counter
Mat.Appeal No.676 of 2022
statements to both those interlocutory applications. The
Family Court considered those applications together and as
per the order dated 06.07.2022, dismissed both those
applications.
4. Reasons stated for the delay are that the brother
of the appellant fell ill during 2017 suffering from Lymphoma
and had to undergo prolonged treatment. His step daughter
Ms.Shobitha K.S also fell ill suffering from Adenocarcinoma.
The appellant had to look after their affairs and eventually
both of them expired. When he tried to enquire about the
case, he came to know that his Lawyer expired on
11.04.2018. He thereafter approached the respondent who
assured that no steps for execution of the decree would be
taken. But he later received notice in EP No.82 of 2018 and
then only he could file the petition for setting aside the ex
parte decree.
5. The respondent who is none other than the
daughter of the appellant took the stand that she was never
approached by the appellant, nor did she assure him not to
execute the decree. She also contended that there was no
Mat.Appeal No.676 of 2022
requirement for the appellant to take care of his brother since
his wife and other relatives were capable enough to look after
him. The respondent also contended that the appellant was in
fact leading a luxurious life and there was absolutely no
reason preventing him from appearing before the Court.
6. The delay is 1485 days. Considering the
relationship between the parties and the situations in which
they were placed, it has to be said that the delay is
inordinate. This is not a case where the appellant did not
know about the case. He entered appearance through his
counsel, but later absented from appearing before the Court.
It is also the contention of the appellant that he enquired
about the case, but he was not able to get information since
his Lawyer died on 11.04.2018. From the averments of the
appellant, it is seen that his brother and step daughter were
under treatment during 2017-18 period. It was explained that
the appellant wanted to attend to the affairs of his ailing
brother and step daughter, and he was unable to appear
before the Court. His brother and step daughter expired in
2018. The reason why he waited till 18.03.2022 to file I.A
Mat.Appeal No.676 of 2022
Nos.1585 of 2022 and 1586 of 2022 is not explained. The
obvious reason for filling the present applications is that he
received notice in the execution petition. It would show that
the appellant was not at all diligent in enquiring about the
proceedings in O.P No.46 of 2013.
7. 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.
8. 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
distinction between inordinate delay and a delay of short
Mat.Appeal No.676 of 2022
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
condonation of delay is a significant and relevant
fact.
Mat.Appeal No.676 of 2022
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
away with fraud, misrepresentation or interpolation
by taking recourse to the technicalities of law of
Mat.Appeal No.676 of 2022
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]
9. 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,
warrants strict approach, whereas, a delay of short duration
or few days, which may not attract doctrine of prejudice, calls
Mat.Appeal No.676 of 2022
for a liberal delineation.
10. When the delay is inordinate, and the explanations
given for the delay are not satisfactory, the Court cannot
condone the delay on the premises that the decision in every
case shall be on merits. In the circumstances of this case, the
prejudice that may be caused to the respondent also assumes
importance. The decree was obtained by the respondent on
21.01.2017. She filed an Execution Petition in 2018. When the
property of the appellant was about to be sold in the
execution proceedings only he had filed the said interlocutory
applications. By such a long lapse of time, the position of the
respondent who was allowed to realise money from the
appellant - father towards her education and marriage
expenses has become precarious. Any further delay would
naturally cause serious prejudice to the respondent. When the
said circumstances are viewed in the light of the law laid down
by the Apex Court and this Court in the aforesaid decisions,
we are of the view that the reason shown by the appellant to
condone the delay of 1485 days is not sufficient. Therefore
the orders of the Family Court dismissing I.A. Nos.1585 of
Mat.Appeal No.676 of 2022
2022 and 1586 of 2022 are not liable to be interfered with.
The appeal is therefore dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
PV
