Kerala High Court
Sudheer @ Badar Sudheesh vs Sithara on 29 February, 2024
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
THURSDAY, THE 29TH DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945
MAT.APPEAL NO. 496 OF 2023
OP 537/2013 OF FAMILY COURT, MALAPPURAM
APPELLANT/RESPONDENT
SUDHEER @ BADAR SUDHEESH
AGED 44 YEARS,
S/O MUHAMMED KUTTY, KATTUKANDAN VEEDU, ARYAMBAVU,
ARIYUR P.O., PALAKKAD DISTRICT., PIN - 678583
BY ADVS.
RAJESH SIVARAMANKUTTY
ARUL MURALIDHARAN
RESPONDENT/PETITIONER
SITHARA, AGED 33 YEARS
D/O KUNHIMUHAMMED, EDAKKANDAN VEEDU, VEDIVECHAPPARA,
PULLANGOD, MALAPPURAM DISTRICT., PIN - 676525
BY ADV K.RAKESH
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
19.02.2024, THE COURT ON 29.02.2024 DELIVERED THE FOLLOWING:
Mat.App.496/2023
2
ANU SIVARAMAN & C.PRATHEEP KUMAR, JJ.
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Mat.Appeal 496 of 2023
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Dated : 29th February, 2024
JUDGMENT
C.Pratheep Kumar, J.
1. This is an appeal filed by the respondent in O.P.No.537/2013 on the file of
the Family Court, Malappuram, against the ex parte decree dated
13.5.2014. The respondent/wife filed the above O.P. for return of 42
sovereigns of gold ornaments or its market value. Since the appellant
herein remained ex parte, the Family Court decreed the O.P as per the
impugned judgment dated 13.5.2014. He has preferred this appeal only on
3.7.2023, more than nine years after the date of the ex parte decree. Along
with the appeal he had filed C.M.Application 1/2023 praying for
condoning the delay of 2586 days in filing the Mat.Appeal. The above
delay has been calculated after deducting the COVID period.
2. The delay petition was strongly opposed by the learned counsel for the
respondent. It was contended that there is absolutely no ground for
condoning the inordinate delay of above nine years in filing the Appeal.
Now the points that arise for consideration are the following :-
(i) Whether the petitioner was prevented by sufficient cause from
filing the appeal in time ?
(ii) Whether there is sufficient ground for condoning the delay of
2586 days in filing the appeal ?
3. Heard both sides.
4. The points :- According to the learned counsel for the appellant, the
appellant was in abroad and that is why he could not appear before the
Court and contest the case. In C.M.Application 1/2023 also, no valid
grounds or reasons are stated for the above inordinate delay in approaching
the Court with this Appeal. According to the appellant, a copy application
for obtaining the order could be made only on 12.6.2023 and that he has
received the certified copy of the order only on 19.6.2023 and it was in the
above context there occurred a delay of 2586 days.
5. However, it is to be noted that the ex parte decree was passed as early as
on 13.5.2014. The petitioner has not offered any valid grounds for the
delay for the period from May-2014 to June-2023. It is true that in the
meantime the appellant filed two other Mat.Appeals before this court, in
the year 2023, with similar reliefs, but those appeals were dismissed.
6. At the time of arguments it is revealed that in the year 2015 the appellant
approached the Family Court by filing I.A.No.212/2015 and 213/2015
under Order IX rule 13 CPC and Section 5 of the Limitation Act for setting
aside the ex parte decree as well as for condoning the delay. However, the
above applications were dismissed by the Family Court. Thereafter, in the
year 2022 the petitioner has filed another I.A.No.1/2022 under Order IX
rule 13 CPC and I.A.No.2/2022 under Section 5 of the Limitation Act,
with a delay of 3011 days, for the very same reliefs, which were also
dismissed by the Family Court. Against the said order, he had filed
Mat.Appeal No.125/2023 which was also dismissed by this Court as per
judgment dated 22.3.2023. Another Mat.Appeal No.280/2023 filed with
similar prayer was dismissed on 8.6.2023.
7. It is true that in the order dated 8.6.2023 this Court observed that the above
order will not preclude him from challenging the ex parte decree in
accordance with law. It was thereafter that he filed the present Appeal after
getting a fresh certified copy of the ex parte decree. For the mere reason
that in the judgment dated 8.6.2023 he was permitted to challenge the ex
parte decree as per law, the same will not confer on him any right to get the
delay involved in this Appeal condoned as of right. He has to show
sufficient cause for condoning the delay of more than nine years in filing
this Appeal.
8. As we have already noted above, in C.M.Application 1/2023, he has not
given any explanation for the delay in filing the Appeal. He has only stated
that he had applied for the certified copy of the judgment on 12.6.2023 and
after getting the certified copy, he filed the Appeal. Though the decree was
of the year 2014, his contention that he has not applied for the certified
copy of the decree till June-2023 cannot be believed. He has approached
the Family court in 2015 itself to set aside the above decree. Therefore, the
above explanation offered by the petitioner that he got certified copy of the
decree only now is absolutely unbelievable. He was sleeping over his
rights for the last more than nine years. The wife who had secured the
decree for 42 sovereigns of gold ornaments could not enjoy the fruits of
the decree so far. Since the petitioner has not shown any valid grounds for
condoning the inordinate delay of more than nine years in filing the
Appeal, we have no hesitation to hold that there is absolutely no merit in
the application for condoning the delay.
9. Relying upon the decision of the Hon'ble Supreme Court in Sheo Raj
Singh (Deceased) Through Lrs & Ors. v. Union of India & Anr., 2023
(6) KHC (SN) 41, it was argued that length of delay is immaterial for the
purpose of setting aside the ex parte decree. In the above decision there
was only 479 days delay in an appeal preferred by the Government in a
land acquisition matter. It is true that generally while considering an
application for condoning delay, the Court has to take a lenient view in
favour of the petitioner. However, as we have already noted above, in this
case there is more than nine years delay. Absolutely no reason or
explanation is offered by the petitioner so as to consider or show any
lenient view in his favour. In Maniben Devraj Shah v. Municipal
Corporation of Brihan, Mumbai, (2012) 5 SCC 157, the Apex Court had
clearly held that inordinate delay cannot be condoned without a plausible
explanation. For over nine years he was sleeping over his rights and as
such he is not entitled to get any leniency in this matter. We do not find
any merit or bona fides in this application and as such the delay
condonation Application and the Mat.Appeal are liable to be dismissed.
In the result, C.M.Application 1/2023 and the Mat.Appeal are dismissed.
Sd/-
Anu Sivaraman, Judge
Sd/-
C.Pratheep Kumar, Judge
Mrcs/21.2.2024
