Kerala High Court

C.L.John vs Mariyamma Leelamma 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
                     F.A.O.NO. 251 OF 2015
 AGAINST THE ORDER DATED 15.07.2015 IN I.A.NOS.1411 AND
1412 OF 2014 IN A.S.NO.126 OF 2004 ON THE FILE OF THE SUB
                      COURT, KOTTARAKKARA
APPELLANT/PETITIONER:

            C.L.JOHN
            S/O.LEVI, PAMMANNOOR THEKKEKKARA
            VEEDU,PANDITHITTA MURI,THALAVOOR VILLAGE.
            BY ADV SRI.B.KRISHNA MANI


RESPONDENTS/RESPONDENTS:

    1       MARIYAMMA LEELAMMA
            KANJIRAM VILAVEEDU,KARIKKAM.P.O,IYPPALLOOR
            MURI,MELILA, KOTTARAKKARA TALUK,KOLLAM
            DISTRICT-691586.
    2       KUNJACHAN
            S/O ISSAC,KARIKKATHIL KANJIRAMVILA
            VEEDU,IYPPALLOOR MURI,MELILA, KOTTARAKKARA
            TALUK,KOLLAM DISTRICT-691586.

        THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR
ADMISSION    ON   13.06.2023,   THE   COURT   ON   THE   SAME   DAY
DELIVERED THE FOLLOWING:
                                  2
F.A.O.No.251 of 2015



                            JUDGMENT

P.G. Ajithkumar, J.

This is an appeal filed under Order XXXIII, Rule 1(c) of

the Code of Civil Procedure, 1908. The order of the Sub Court,

Kottarakkara dated 15.07.2015 in I.A.Nos.1411 and 1412 of

2014 in A.S.No.126 of 2004 is challenged in this appeal. The

appellant filed those interlocutory applications for readmission

of the appeal, which was dismissed for default and to condone

the delay of 418 days in filing the former application. The Sub

Court dismissed those applications.

2. There was a delay of 18 days in filing this appeal.

By the order dated 02.07.2018 in C.M.Appl.No.654 of 2015

condoned the delay. Despite giving notice, the respondents

did not choose to appear before this Court.

3. Heard the learned counsel appearing for the

appellant.

4. The appellant filed O.S.No.439 of 2001 before the

Munsiff's Court, Punalur seeking a decree of declaration and

consequential reliefs. The respondents filed a written statement.

The suit was dismissed as per the judgment dated 28.05.2004.

Challenging the said judgment and the decree, the appellant has

F.A.O.No.251 of 2015

filed A.S.No.126 of 2004 before the Sub Court, Kottarakkara.

That appeal was dismissed for default on 28.06.2014. The

appellant filed I.A.Nos.1411 and 1412 of 2014 stating that the

appellant was undergoing treatment for the rheumatic problem

and therefore he could not appear before the court or instruct his

counsel. Only after one year, his counsel informed that the

appeal was dismissed for default. Moreover, he was residing at a

far away place during the relevant period. Highlighting those

facts the appellant had filed the aforesaid interlocutory

applications, which were opposed by the respondents. The Sub

Court, after hearing both sides and considering the oral

testimony of the appellant tendered as PW1, held that there was

no sufficient reason for condoning the delay.

5. The learned counsel appearing for the appellant

would submit that oral evidence of PW1 was convincing and

there was no reason to reject his evidence. The practical

difficulties experienced by the appellant were convincingly

deposed by him, and therefore, the appeal should have been

readmitted to file, after condoning the delay. It is also

submitted that considering the length of period of delay, the

Sub Court should have taken a lenient view.

F.A.O.No.251 of 2015

6. 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.

7. 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

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

F.A.O.No.251 of 2015

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.

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

F.A.O.No.251 of 2015

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 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]

F.A.O.No.251 of 2015

8. 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