Kerala High Court
Mary Elizabath vs Sonu on 23 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 23RD DAY OF FEBRUARY 2024/4TH PHALGUNA, 1945
OP(C) NO.3189 OF 2019
AGAINST THE ORDER DATED 24.10.2019 IN I.A.1471/2016 AND
I.A.1472/2016 IN O.S 492/2009 OF PRINCIPAL SUB COURT,
THIRUVANANTHAPURAM
PETITIONER/PLAINTIFF:
1 MARY ELIZABATH, AGED 70 YEARS,
W/O.ANTONY FERNANDAZ, RESIDING AT JAXVILLA,
HOUSE NO.27, SANTHI NGAR, KAZHAKOOTTAM,
THIRUVANANTHAPURAM-695 582.
*ADDL.PETITIONERS 2 TO 4 IMPLEADED
*ADDL.P2 L.ANTONY FERNANDEZ, AGED 75 YEARS,
S/O.FERNANDEZ, RESIDING AT JAXVILLA,
HOUSE NO.27, SANTHI NAGAR, KAZHAKOOTTAM,
THIRUVANANTHAPURAM-695 582.
*ADDL.P3 JULIUS ANTONY, AGED 47 YEARS,
S/O.FERNANDEZ, RESIDING AT JAXVILLA,
HOUSE NO.27, SANTHI NAGAR, KAZHAKOOTTAM,
THIRUVANANTHAPURAM-695 582.
*ADDL.P4 ANACULATE FERNANDEZ, AGED 43 YEARS,
S/O.FERENANDEZ, RESIDING AT JAXVILLA,
HOUSE NO.27, SANTHI NAGAR, KAZHAKOOTTAM,
THIRUVANANTHAPURAM -695 582.
*(ADDITIONAL P2 TO P4 ARE IMPLEADED AS PER ORDER
DATED 24/09/2021IN IA 1/2021 IN OPC 3189/2019)
BY ADVS.
R.S.KALKURA
M.S.KALESH
HARISH GOPINATH
R.BINDU
RESPONDENT/3RD DEFENDANT:
1 SONU, AGED 59 YEARS, D/O.LATE JOHN,
HOUSE NO.151, T.C.1/361, PALLITHURA P.O.,
THIRUVANANTHAPURAM-695 586.
OP(C) No.3189 of 2019
- 2 -
*ADDL.RESPONDENTS 2 TO 3 IMPLEADED
*ADDL.R2 DR.MEENA XAVIER, W/O.XAVIER ANTONY, AGED 46,
BADAR AL SAMA GROUP OF HOSPITALS MUSCAT,
P.O.BOX 1165, P.C.121.ALKHOUD MUSCAT, OMAN,
FROM JAXVILLA, HOUSE NO.27, SANTHI NAGAR,
KAZHAKOOTTAM, THIRUVANANTHAPURAM-695 582.
*ADDL.R3 PEARL XAVIER ANTONY, D/O.XAVIER ANTONY, AGED 17,
MINOR, REPRESENTED BY HER MOTHER AND NATURAL
GUARDIAN THE SECOND RESPONDENT DR.MEERA XAVIER,
W/O.XAVIER ANTONY, BADAR AL SAMA GROUP OF
HOSPITALS MUSCAT, P.O.BOX 1165, P.C.121. ALKHOUD
MUSCAT, OMAN FROM JAXVILLA, HOUSE NO.27, SANTHI
NAGAR, KAZHAKOOTTAM, THIRUVANANTHAPURAM -695 582.
*(ADDITIONAL R2 AND R3 ARE IMPLEADED AS PER ORDER
DATED 24/09/2021IN IA 1/2021 IN OPC 3189/2019)
BY ADV. SMT.MARY BENJEMIN
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
23.02.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) No.3189 of 2019
- 3 -
JUDGMENT
Dated, this the 23rd February, 2024
The petitioner herein is the plaintiff in the
suit, O.S.No.492/2009, of the Principal Sub Court,
Thiruvananthapuram. The petitioner is aggrieved by
Ext.P11 order, which condoned the delay of 220
days in preferring an application to set aside the
ex-parte decree and which also set aside the ex-
parte decree.
2. Heard the learned counsel for the petitioner
and the respondent.
3. Learned counsel for the petitioner seriously
canvassed for the legal position that delay to
seek setting aside of an ex-parte decree, unless
satisfactory explained, cannot be condoned. It was
specifically pointed out that judicial generosity
shall not be shown, unless the application for
- 4 -
condonation of delay falls within the ambit of
'sufficient cause' in terms of Section 5 of the
Limitation Act. Learned counsel relied upon the
judgment of a learned Single Judge of the Madras
High Court in C.R.P.No.4167/2022, wherein several
judgments of Division Bench of that Court are seen
referred to. According to the learned counsel,
there is no bonafides, whatsoever, on the part of
the respondent, insofar as the delay is concerned,
and also, in seeking the ex-parte order to be set
aside. It was specifically pointed out that the
respondent/defendant had notice about the matter
being included in the list on 15.09.2015,
whereafter, the respondent/defendant was grossly
negligent in not appearing before the court, when
the matter was taken up for evidence. The
respondent also did not care to make enquiries as
regards the outcome of the suit, which was posted
for evidence. As regards the disease of
respondent's daughter, claimed as a reason for
non-appearance, it was submitted that no document,
- 5 -
whatsoever, was produced in support, thereof.
According to the learned counsel, delay is not
liable to be condoned. It was finally submitted
that the decree - sought to be set aside - has
already been executed, wherefore setting aside the
same would cause serious hardship to the
petitioner.
4. Per contra, it was submitted by the learned
counsel for the respondent that by virtue of the
leave applications preferred by the respondent, it
is clear that the respondent's daughter was
suffering from 'Chikungunya', which prevented the
respondent from appearing before the court on the
date on which it was posted for trial. According
to the learned counsel, the application for
setting aside an ex-parte decree has to be
considered with sympathy and a liberal approach is
warranted, especially when the written statement
has already been filed and documents produced.
- 6 -
5. Having heard the learned counsel appearing on
both sides, this Court notice that no reason,
whatsoever, is specifically stated in Ext.P8
application to condone the delay of 220 days,
except stating that the respondent came to know
about the ex-parte decree only when she received
notice from her lawyer's office. It is the
respondent's claim that she took steps immediately
thereupon to file Ext.P8 application to condone
the delay, along with Ext.P6 application to set
aside the ex-parte decree.
6. This Court notice that the facts and
circumstances are not fully conducive to condone
the delay. However, as pointed out by the learned
counsel for the respondent, the leave availed by
the respondent, including medical leave, would
show that her daughter was suffering from
'Chikungunya', though medical records to that
effect has not been produced. This Court also
notice that there is default on the part of the
- 7 -
respondent only on one occasion; and that written
statement, along with the documents, have already
been filed. In the circumstances, even though the
decree stands executed, as submitted by the
learned counsel for the petitioner, this Court is
of the opinion that respondent can be afforded
with an opportunity to contest the matter on
merits. The policy of law always is to promote
decision of cases on merits; and not on
technicalities.
7. In the circumstances, the impugned Ext.P11
order is sustained, subject to the modification
that the cost of Rs.5,000/- referred therein, will
stand enhanced to Rs.20,000/- (Rupees Twenty
Thousand only) to be paid by the respondent herein
to the petitioner/plaintiff, within a period of
three weeks from today (23.02.2024). Upon receipt
of evidence as regards the payment directed herein
above, the trial court will proceed with the
matter, in accordance with law. This being the
- 8 -
suit of the year 2009, there will be a further
direction to the Principal Sub Court,
Thiruvananthapuram to try and dispose of the
matter, within a period of six months from the
date of receipt of a copy of this judgment.
This Original Petition is disposed of, as
above.
Sd/-
C.JAYACHANDRAN, JUDGE
ww
- 9 -
APPENDIX OF OP(C) 3189/2019
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.492 OF 2009
ON THE FILE OF THE PRINCIPAL SUBORDINATE
JUDGE'S COURT, THIRUVANANTHAPURAM.
EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 23.09.2015
IN O.S.492 OF 2009 ON THE FILE OF THE 2ND
ADDL.SUBORDINATE JUDGE'S COURT,
THIRUVANANTHAPURAM.
EXHIBIT P3 TRUE COPY OF THE DECREE DATED 23.09.2015
IN O.S.492 OF 2009 ON THE FILE OF THE 2ND
ADDL.SUBORDINATE JUDGE'S COURT,
THIRUVANANTHAPURAM.
EXHIBIT P4 TRUE COPY OF E.P.21 OF 2016 IN O.S.492 OF
2009 ON THE FILE OF THE SUBORDINATE
JUDGE'S COURT, THIRUVANANTHAPURAM.
EXHIBIT P5 TRUE COPY OF THE DELIVERY LIST ISSUED BY
THE 2ND ADDITIONAL SUBORDINATE JUDGE'S
COURT THIRUVANANTHAPURAM IN O.S 492 OF
2009 IN E.P 21 OF 2016.
EXHIBIT P6 TRUE COPY OF I.A.1471 OF 2016 IN O.S. 492
OF 2009 ON THE FILE OF THE SUBORDINATE
JUDGE'S COURT, THIRUVANANTHAPURAM.
EXHIBIT P7 TRUE COPY OF THE OBJECTION TO I.A.1471 OF
2016 IN O.S 492 OF 2009 ON THE FILE OF THE
SUBORDINATE JUDGE'S COURT,
THIRUVANANTHAPURAM.
EXHIBIT P8 TRUE COPY OF I.A.1472 OF 2016 FILED BY THE
THIRD DEFENDANT IN O.S 492 OF 2009 ON THE
FILE OF THE SUBORDINATE JUDGE'S COURT,
THIRUVANANTHAPURAM.
EXHIBIT P9 TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER TO I.A 1472 OF 2016 IN O.S 492
OF 2009 ON THE FILE OF THE SUBORDINATE
JUDGE'S COURT, THIRUVANANTHAPURAM.
- 10 -
EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 01.08.2019
IN OP(C) 2501 OF 2018.
EXHIBIT P11 TRUE COPY OF THE ORDER DATED 24.10.2019 IN
I.A 1471 OF 2016 AND I.A 1472 OF 2016 IN
O.S 492 OF 2009 ON THE FILE OF THE
SUBORDINATE JUDGE'S COURT,
THIRUVANANTHAPURAM.
