Faisal vs Saifudeen
2023 Latest Caselaw 6403 Ker

        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. 119 OF 2022
AGAINST THE ORDER DATED 05.08.2022 IN I.A.NO.1 OF 2022 IN
  O.S.NO.49 OF 2014 ON THE FILE OF THE SUB COURT, TIRUR
APPELLANT/PETITIONER/DEFENDANT:

         FAISAL
         AGED 46 YEARS,
         S/O ABDUL RAHMAN, RESIDING AT KUMMALI HOUSE,
         THANALUR AMSOM, AREAKAD DESOM, TIRUR TALUK,
         MALAPPURAM DISTRICT, PIN - 676307.
         BY ADVS.
         J.R.PREM NAVAZ
         SUMEEN S.
         O.MOHAMED BASIL KOYA THANGAL
         IRSHAD K.K.
         MUHAMMED SWADIQ


RESPONDENT/RESPONDENT/PLAINTIFF:

         SAIFUDEEN
         AGED 39 YEARS
         S/O POCKER HAJI, RESIDING AT PANNIKKANDATHIL
         HOUSE, ITTILAKKAL HOUSE, ITTILAKKAL P.O,
         PONMUNDAM, TIRUR TALUK, MALAPPURAM DISTRICT,
         PIN - 676106.
         BY ADVS.
         K.P.SUDHEER ADVOCATE
         J.RAMKUMAR



     THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR
FINAL HEARING ON 13.06.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
                                        2
F.A.O.No.119 of 2022


                               JUDGMENT

P.G. Ajithkumar, J.

This is an appeal filed under Section 104 read with Order

XLIII, Rule 1(d) of the Code of Civil Procedure, 1908.

2. The appellant is the defendant in O.S.No.49 of

2014 on the file of the Sub Court, Tirur. The suit was decreed

exparte on 04.12.2015. I.A.No.1 of 2022 filed by the

appellant seeking to set aside that decree was dismissed. That

order, which is dated 05.08.2022, is under challenge in this

appeal.

3. On 11.10.2022, the appeal was admitted and an

interim order staying further proceedings pursuant to the

judgment and decree in O.S.No.49 of 2014 was granted for a

period of two months. That order was extended from time to

time. The matter was referred for mediation in order to

explore the possibility of settlement. But their attempt was

failed.

4. Heard the learned counsel appearing for the

appellant and the learned counsel appearing for the

respondent.

5. The learned counsel appearing for the appellant

F.A.O.No.119 of 2022

would submit that the Sub Court, Tirur banked upon the

failure to file an application under Section 5 of the Limitation

Act, 1963, in order to dismiss I.A.No.1 of 2022. The decree in

the suit was passed on 04.12.2015 and I.A.No.1 of 2022 was

filed on 07.01.2022. The learned counsel appearing for the

appellant placing reliance on the decision in Unniraman v.

Padmanabhan [1987 (2) KLT 1023] contended that an

application for condonation of delay is not always essential

and the court can consider whether there is sufficient reason

to condone the delay even in the absence of an application. In

the said decision, a learned Single Judge of this Court held

that in a case where there is pleading and evidence in the

application for setting aside the decree regarding the reason

for the delay, the same can be considered. Even if the said

proposition is accepted, there is no improvement to the case

of the appellant. The appellant has filed I.A.No.1 of 2022 on

the premise that there was no delay and he was not obliged

to explain the reason for the delay. He took the stand that

only when he received notice in E.A.No.1 of 2021 in E.P.No.16

of 2016, he came to know about the decree and therefore, his

application filed on 07.01.2022 is well within time.

F.A.O.No.119 of 2022

6. The appellant despite taking up the contention that

within 30 days of getting knowledge about the decree, he filed

I.A.No.1 of 2022, nothing has been stated in the affidavit in

support of the said petition as to when he received notice in

E.A.No.1 of 2021 in E.P.No.16 of 2016. Although he contended

that he did not know about the suit ever before the receipt of

the notice in E.A.No.1 of 2021, the circumstances show

otherwise. It may be noted that substituted service was

effected in the suit. A paper publication was also taken out.

When there was such a service of summons, the presumption

is that the appellant did get notice regarding pendency of the

suit. It is his burden to prove that he did not actually get

notice regarding the pendency of the suit. He did not venture

to adduce any evidence to discharge that burden. In that view

of the matter, it cannot be said that the appellant knew about

the suit only when he received notice in E.A.No.1 of 2021.

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,

F.A.O.No.119 of 2022

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

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

F.A.O.No.119 of 2022

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 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

F.A.O.No.119 of 2022

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]

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

F.A.O.No.119 of 2022

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. This is a case where an application for setting aside

the decree was filed after six years. Nothing has been pleaded by

the appellant regarding the reason for the delay. Of course, his

case is that there was no delay since he filed I.A.No.1 of 2022

within the statutory period, after getting knowledge about the

decree. That plea has not been substantiated. Therefore, the

appellant has the burden to prove that there was sufficient cause

for the delay so as to get the exparte decree set aside.

Considering the length of the delay, a strict approach is required

while appreciating the reason furnished for condonation of delay.

11. The Apex Court in Sabarmati Gas Limited v.

Shah Alloys Limited [(2023) 3 SCC 229] held that

'sufficient cause' is the cause which a party could not be

blamed.

F.A.O.No.119 of 2022

12. When the appellant failed to place on record any

material to prove that there was sufficient cause that

prevented him from approaching the court in time for setting

aside the decree, it cannot be said that there is sufficient

cause for the delayed filing of I.A.No.1 of 2021. The appeal is

therefore unsustainable. The appeal fails. Accordingly, the

appeal is dismissed.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE dkr