Kerala High Court
Unnikrishnan vs Sethumadhavan on 13 June, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 13TH DAY OF JUNE 2023 / 23RD JYAISHTA, 1945
FAO NO.241 OF 2015
AGAINST THE COMMON ORDER IN I.A.NO.591 OF 2011 AND 592 OF
2011 IN O.S.NO.46 OF 2009 OF SUB COURT, OTTAPPALAM DATED
02.06.2015
APPELLANT/PETITIONER/DEFENDANT:
UNNIKRISHNAN
AGED 45 YEARS
S/O.RAMANKUTTY THARAKAN, THOTTATHIL VEERAMANGALAM,
MANGODE DESOM, OTTAPALAM TALUK,
REPRESENTED BY POWER OF ATTORNEY HOLDER, INDIRA.
BY ADVS.
SRI.K.MOHANAKANNAN
SMT.A.R.PRAVITHA
RESPONDENT/RESPONDENT/DECREE HOLDER:
SETHUMADHAVAN
AGED 38 YEARS
S/O.GOPI KURUPPU, AMBADIYIL VELLINEZHI AMSOM,
DESOM OTTAPALAM TALUK-679 101.
BY ADV.
SRI.R.SREEHARI
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR
ADMISSION ON 13.06.2023, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
2
FAO NO.241 of 2015
JUDGMENT
P.G.Ajithkumar, J.
This appeal was directed against the order of the Sub
Court, Ottappalam in I.A. Nos.591 and 592 of 2011 in O.S.
No.46 of 2009. Those applications were filed by the appellant
seeking to set aside the ex parte decree dated 25.07.2009 in
that suit and to condone delay of 555 days. The Sub Court
dismissed those applications as per the order dated
02.06.2015 which is under challenge in this appeal filed under
Section 104 of Order XLIII Rule 1(d) of the Code of Civil
Procedure, 1908.
2. On 21.11.2015, an order of temporary injunction
restraining the respondents from alienating or encumbering
the property scheduled in O.S.No.46 of 2009 was granted.
This matter was referred for mediation in order to explore the
possibility of a settlement. But that attempt failed.
3. Heard the learned counsel appearing for the
appellant and the learned counsel appearing for the
respondent.
4. The appellant sought to set aside the decree dated
FAO NO.241 of 2015
25.07.2009 and to condone the delay of 555 days for the
reason that he did not receive summons in the suit since he
was working abroad. It is contended that a notice was seen
exhibited on the fence of the appellants' property from which
the power of attorney holder of the appellant who is his wife
came to know about the proceedings in the court and in the
ensued enquiry alone she came to know about the decree
dated 25.07.2009. The appellant could file the petition for
setting aside the ex parte decree only thereafter and therefore
the delay had occasioned in filing the application for setting
aside the ex parte decree. The appellant would contend that
the delay is thus sufficiently justified.
5. Respondent refuted the said contentions of the
appellant and contended that the power of attorney of the
appellant who was examined as PW1 in Court must have
known about the sale proclamation much earlier and therefore
the delay in filing the petition is not justifiable. The learned
counsel appearing for the respondent pointed out the
admissions of PW1 that she came to know the proceedings in
the execution petition much before filing of the present
FAO NO.241 of 2015
application. It is accordingly contended that the Sub Court
rightly had rejected the applications.
6. The appellant produced Exts.A1 to A5 apart from
tendering the oral testimony of PW1. Those are medical
records showing treatment of PW1 during the period from May
to June in 2011. The ex parte decree was passed on
25.07.2009. The court below took the view that even if PW1
was under treatment during May to July in 2011, that cannot
be a reason justifying the non appearance of the appellant
before the court on 25.07.2009. It was also held that the said
medical records would not help the appellant to explain the
delay in filing the application for setting aside the decree.
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
FAO NO.241 of 2015
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
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
FAO NO.241 of 2015
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.
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
FAO NO.241 of 2015
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
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
FAO NO.241 of 2015
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
for a liberal delineation.
10. The fact that the appellant was working abroad is
not in dispute. There is no personal service of summons in the
suit. In such circumstances, the oral testimony of PW1 that
the appellant did not get information regarding pendency of
O.S.No. 46 of 2009 cannot be said to be totally incorrect. In
the said factual situation, it cannot be said that delay of 555
days is inordinate. Applying the preposition of law laid down in
the aforesaid decisions, it is appropriate to take a lenient view
in this case. Hence we are of the view that the delay of 555
days can be condoned and the petition for setting aside the ex
parte decree dated 25.07.2009 can be allowed on payment of
a cost to the respondent to compensate the inconvenience
FAO NO.241 of 2015
caused to him.
11. Accordingly this appeal is allowed. The impugned
order is set aside on the condition of payment of a cost of
Rs.10,000/- by the appellant to the respondent within a
period of three weeks from today. On such payment,
I.A.No.591 and 592 of 2011 will stand allowed. The Sub
Court, Ottappalam will thereupon restore O.S.No.46 of 2009
on the file and proceed in accordance with law.
Both parties are directed to appear before the Sub
Court, Ottappalam on 10.07.2023. The Sub Court shall make
every endeavour to dispose of O.S. No.46 of 2009 within four
months from the date of appearance of the parties.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
PV
