Jayabharatham Financiers vs Syamala Muraleedharan
2024 Latest Caselaw 8 Ker

Kerala High Court

Jayabharatham Financiers vs Syamala Muraleedharan on 3 January, 2024

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
            THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
    WEDNESDAY, THE 3RD DAY OF JANUARY 2024 / 13TH POUSHA, 1945
                      OP(C) NO. 1147 OF 2022
        AGAINST OS 68/2002 OF ASSISTANT SESSIONS COURT/SUB
                        COURT,KOTTARAKKARA
PETITIONERS/RESPONDENTS 1, 3 & 4 OF 2021 & 1ST PLAINTIFF & LEGAL
HEIRS OF 2ND PLAINTIFF IN O.S.NO.68/2002:

    1     JAYABHARATHAM FINANCIERS
          REPRESENTED BY ITS MANAGING PARTNER P.T.SUBHASH BABU,
          JAYABHARATHAM BUNGLOW, ARAMPUNNA, PUNALUR, PIN - 691322
    2     BENNY,
          S/O VARGHESE,
          KARIMARATHINAL, MULLASSERI, PRAMADAM VILLAGE,
          PATHANAMTHITTA DISTRICT, PIN - 689646
    3     REJI
          D/O.RAJU VARGHESE, JAYABHARATHAM BUNGLOW, ARAMPUNNA,
          PUNALUR, PIN - 691322
          BY ADVS.
          MOHAN JACOB GEORGE
          P.V.PARVATHY (P-41)
          REENA THOMAS
          NIGI GEORGE


RESPONDENTS/PETITIONERS IN I.A.3 & 4/2021 & LEGAL HEIRS OF 1ST
DEFENDANT IN O.S.NO.68/2002:

    1     SYAMALA MURALEEDHARAN
          AGED 63 YEARS, W/O MURALEEDHARAN,
          RESIDING AT AJANTHA, BHARANICAVU WARD, PUNALUR VILLAGE,
          PIN - 690520
    2     AKHILESH
          S/O. MURALEEDHARAN,
          RESIDING AT AJANTHA, BHARANICAVU WARD, PUNALUR VILALGE,
          PIN - 690520
    3     ARCHANA, D/O,. MURALEEDHARAN,
          RESIDING AT AJANTHA, BHARANICAVU WARD, PUNALUR VILLAGE,
          PIN - 690520
          BY ADVS.
          K.SASIKUMAR
          S.ARAVIND(K/1206/2006)
          P.S.RAGHUKUMAR(K/500/2015)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03.01.2024, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P.(C).No. 1147 of 2022
                              ..2..




                      J U D G M E N T

Dated this the 3rd day of January, 2024

Ext.P9 order is under challenge, which condoned a

whopping delay of 2009 days (5 ½ years

approximately) in filing a petition, to restore an

application to set aside the ex-parte decree. The

suit, O.S.No.68/2002, was decreed ex-parte on

30.09.2013. On 19.11.2013, the defendants filed

two interlocutory applications, I.A.Nos. 2474 &

2475 of 2013, the former to set aside the ex-parte

decree and the latter to condone the delay. Both

interlocutory applications were dismissed for

default on 17.08.2015. After more than 5 years,

on 18.02.2021, the defendants in the suit

preferred two interlocutory applications, I.A.Nos.

2 & 3 of 2021, the former to restore

I.A.No.2475/2023 and the latter to condone the

delay of 2009 days in filing I.A.No.2/2021. By the

impugned Ext.P9 order, the delay was condoned and

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I.A.No.2475/2023 was restored on files. In doing

so, the learned Munsiff took stock of Ext.A1

Medical Certificate issued by PW2, a Doctor at

Punalur, certifying that the 1st petitioner was

undergoing treatment for Inter Vertebral Disc

Prolapse (I.V.D.P); that the subject suit of the

year 2002, which was rejected for non-payment of

Court fee, was restored only in the year 2013;

that the decree was an ex-parte one; that though

the original defendants attempted to restore the

decree, they passed away in the meantime and their

legal representatives had to pursue the matter;

that the petitioners in the court below, who have

no litigation experience, were not properly guided

by their counsel and that the 1st petitioner had to

relocate to Bangalore to reside along with her

children, which prevented her from attending and

pursuing the case properly. Premised on the above

facts, the learned Munsiff was of the opinion that

the issued involved, deserves a very liberal

approach and the delay has to be condoned, so as

..4..

to enable a decision on merits. The learned

Munsiff went on to hold that a major portion of

the delay in disposing the subject suit, which is

more than 20 years old, is attributable to the

plaintiffs. Holding so, the delay was condoned and

the application to set aside the ex-parte decree

was restored on files.

2. Heard Sri.Mohan Jacob George, learned counsel

for the petitioners and Sri.K.Sasikumar, on behalf

of the respondents.

3. Learned counsel for the petitioners submit

that an application for condonation of delay

should not be dealt with in a routine manner and

that in cases where there is inordinate delay -

which attracts doctrine of prejudice - a strict

approach is warranted. It was emphasized that no

reason, whatsoever, has been stated in the

impugned order, as regards the 'sufficient cause'

to condone the delay. Learned counsel pointed out

..5..

that, the Court below grievously erred in blaming

the plaintiff for the pendency of the case for a

period more than 20 years, since that was no

relevant consideration at all, while addressing

the sufficient cause to condone the delay in

seeking restoration of a petition to set aside the

ex-parte decree. Learned counsel also pointed out

that the legal heirs of the original 2nd defendant

were not impleaded in I.A.Nos.2 & 3 of 2021,

despite objection raised by the petitioners.

Exts.P8 and P8(a) orders, which allowed I.A.Nos.6

& 7 of 2022, to carryout an amendment to cure a

defect in the cause title, were also collaterally

challenged by the petitioners. On the afore-

referred premise, the petitioners seek Ext.P9

order to be set aside.

4. Refuting the above allegations, learned

counsel for the respondents submitted that the

suit of the year 2002 based on a pro-note, claimed

to have been executed in connection with a chitty

..6..

transaction, was filed against a father and son

(defendants 2 & 1 respectively), who were aged 89

and 46 years at the time of filing the suit.

After filing the written statement, on 31.10.2005,

the suit was rejected for non-payment of Court

fee. After 4 years, the suit was restored with a

condition that the petitioners shall pay balance

Court fee within a period of seven days, which was

also not done. Therefore, the suit was again

rejected on 27.10.2009. A Regular First Appeal

was preferred before this Court as R.F.A.

No.325/2010, which was allowed on payment of cost

of Rs.25,000/-. It was accordingly that the suit

was restored. By the time, the suit got restored,

both the defendants became more aged and the 1st

defendant/son fell ill due to Kidney disease.

Although, a petition to set aside the ex-parte

decree was filed on 19.11.2013, the 1st defendant/

son passed away on 13.05.2014. On 05.01.2015, the

2nd defendant/father also died. Pursuant to the

death of the 1st defendant, the 1st petitioner in

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the restoration petition, who is wife of the 1st

defendant, left to Bangalore to reside along with

her children. She was ill and suffering from

various ailments and also labouring under the

impression that their counsel would take care of

their interest in the suit, which however, did not

happen. It was in such circumstance that, the

petition to set aside the ex-parte decree was

dismissed on 17.08.2015. Interlocutory

applications were filed to restore the petition to

set aside the ex-parte decree, along with a

petition to condone the delay on 18.02.2021. It

was specifically pointed out by the learned

counsel for the respondents that, although, an ex-

parte decree was passed on 30.09.2013 and that the

application to set aside the same was dismissed as

early as on 17.08.2015, no execution petition was

filed, until the petitioners herein filed I.A.Nos.

2 & 3 of 2021. The Execution Petition was filed

thereafter, only on 31.01.2022. According to the

learned counsel, the respondents are entitled to a

..8..

lenient view and a liberal approach in the matter

of condonation of delay, especially, in the

context of the peculiar facts and circumstances of

this case, wherein want of due diligence on the

part of the plaintiff as well is writ large from

the facts above referred.

5. Having heard the learned counsel appearing on

both sides, this Court is of the view that, the

impugned Ext.P9 order warrants no serious

interference, except to render the same subject to

payment of cost. In arriving at such a conclusion,

this Court primarily takes stock of the peculiar

and unfortunate fact situation, to which the

defendants were put to. As already indicated, the

suit was filed in the year 2002, at which point of

time itself, the 2nd defendants/father was 89 years

old and the 1st defendant/son was 46 years old. The

suit was initially rejected for non-payment of

court fees on 31.10.2005. The suit was, however,

restored back on files after four years, with a

condition that the plaintiff will pay balance

..9..

Court fee within a period of 7 days, the non-

compliance of which, led to the second rejection

of the plaint on 27.10.2009. The suit was

ultimately restored back on files by virtue of

Ext.R1(b) judgment of this Court dated 10.04.2013,

upon payment of cost of Rs.25,000/-. It could thus

be seen that, a suit of the year 2002, happened to

be dragged for a period of 11 years without any

serious progress, only on account of the delay,

laches and absence of diligence on the part of

plaintiffs. It is true that these aspects are not

very relevant while considering the present delay

and laches on the part of the defendants in

seeking to restore a petition to set aside the ex-

parte decree. Nevertheless, the relevance is only

in the context of the things which transpired to

the defendants in the meantime, that is to say,

the 2nd defendant becoming aged about 100 years and

the 1st defendant becoming seriously sick due to

kidney disease. Thus, the delay virtually

prevented the defendants from defending the suit

..10..

properly, only because of the long pendency of the

matter for a period of 11 years, without having

any substantial progress in the suit. It is not

disputed that the 1st defendant/son passed away

first on 13.05.2014 due to kidney disease and the

2nd defendant/father also died on 05.01.2015.

Although the suit was decreed ex-parte against the

defendants on 30.09.2013, an application to set

aside the ex-parte decree was filed as early as on

19.11.2013, the delay therein is minimal which was

liable to be condoned, had the matter been

prosecuted by the defendants. On account of the

death of both the defendants, the wife and

children of the 1st defendant had to shoulder the

responsibility of defending the suit and

prosecuting the application to set aside the ex-

parte decree. It is true that there occurred a

delay of more than 5 years on their part to file

necessary application to restore the petition to

set aside the ex-parte decree, which petition got

dismissed on 17.08.2015. The reasons stated in

..11..

Ext.P4 application is that, pursuant to the death

of the 1st defendant, the 1st petitioner/wife left

to Bangalore to reside along with her children,

who are the respondents 2 & 3 herein. It was also

pleaded that there was none to help her, in her

native place and that she was suffering from

various illness. The case was entrusted to

Adv.G.C. Kannan, to safe guard their interest.

He, however, did not choose to inform the

respondents herein about any development in the

case. The long and short of the explanation

offered by the respondents herein is that, the

first respondent/wife was suffering from various

illness, which prevented her from prosecuting her

cause diligently. In support of the said case, PW2

- a Doctor at Punalur - was examined to show that

the first petitioner was suffering from Inter

Vertebral Disc Prolapse (I.V.D.P). On merits, it

is respondents' case that, a document which has

been produced as a promissory note, along with

the plaint is not a promissory note at all; that

..12..

the suit is not liable to be allowed; and that the

interest granted at the rate of 18% per annum is

not justified on any account, whatsoever.

6. This Court notice that the discretion bestowed

under Section 5 of the limitation Act has already

been exercised by the learned Munsiff in favour of

the respondents. The role of this Court, in

exercise of its supervisory jurisdiction under

Article 227, is only to ensure the correctness and

propriety of the course adopted by the learned

Munsiff. In the light of the peculiar facts which

have been adverted to in detail herein above, this

Court is of the opinion that the course adopted by

the learned Munsiff cannot be found fault with. A

scan of the precedents on the point commencing

from Collector, Land Acquisition, Anantnag and

Another v. Mst Katiji and Others [1987 (2) SCC

107], would unerringly indicate that when

substantial justice and technical considerations

are pitted against each other, substantial justice

..13..

should prevail, provided the delay is non-

deliberate. In the absence of gross negligence,

deliberate inaction or utter lack of bona fides,

an application to condone the delay should receive

a liberal consideration, so as to advance the

cause of substantial justice. In other words, it

is not the length of the delay that virtually

matters. Instead, it is the sufficiency of the

cause, as also, whether any accrued right has

crystallized in favour of the opposite party is

what which is more decisive. In the instant case,

it is obvious that there is delay and laches on

the part of the defendants, wherefore, the suit

happened to be decreed ex-parte. An application

to set aside ex-parte decree was also dismissed

for non-prosecution. There is substantial delay in

seeking restoration of that application to set

aside ex-parte decree. However, the peculiar facts

which led to the long pendency of the suit from

2002 to 2013, the delay virtually preventing the

defendants from defending the suit effectively on

..14..

account of their death in the year 2014 and 2015

respectively, the peculiar circumstances under

which the widow had to move herself to Bangalore,

her disease, which to some extent is substantiated

by the evidence of PW2, all would only persuade

this Court to uphold the call taken by the learned

Munsiff. This Court is of the opinion that a

plausible explanation has been offered by the

respondents herein for the delay caused. On the

question of crystallization of rights in favour of

the petitioners, this Court, at the risk of her

petition, would iterate that in respect of a

decree, which was passed as early as on

30.09.2013, an Execution Petition was filed only

on 31.01.2022, that too after Ext.P4 application

was filed seeking a restoration of the application

to set aside the ex-parte decree.

7. The overall facts and circumstances, would

persuade this Court to confirm Ext.P9 order, but

on terms. Accordingly Ext.P9 order is made

..15..

subject to payment of cost of Rs.25,000/- (rupees

twenty five thousand only) to be paid by the

respondents to the petitioners within a period of

one month from the date pronouncement of this

judgment. This Original Petition is allowed to

that limited extent and Ext.P9 order shall stand

modified as indicated above.

Sd/-

C. JAYACHANDRAN JUDGE TR

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APPENDIX OF OP(C) 1147/2022

PETITIONER EXHIBITS Exhibit9 COPY OF COMMON ORDER DATED 05.04.2022 IN IA NOS.2 & 3/2021 IN O.S.NO.68/2002 Exhibit1 COPY OF THE RELEVANT PORTION OF PLAINT IN O.S.NO.68/2002 OF THE SUB COURT, KOTTARAKKARA Exhibit2 COPY OF THE JUDGEMENT DATED 30.09.2013 IN O.S.NO.68/2022 OF THE SUB COURT, KOTTARAKKARA Exhibit3 COPY OF EXECUTION PETITION IN

Exhibit4 COPY OF IA NO.2/2021 IN O.S.NO.68/2002 OF SUB COURT, KOTTARAKKARA Exhibit4(a) COPY OF IA NO.3/2021 IN O.S.NO.68/2002 OF SUB COURT, KOTTARAKKARA Exhibit5 COPY OF OBJECTION SUBMITTED IN IA 2/2021 IN O.S.NO.68/2002 OF SUB COURT, KOTTARAKKARA Exhibit5(a) COPY OF OBJECTION SUBMITTED IN IA 3/2021 IN O.S.NO.68/2002 OF SUB COURT, KOTTARAKKARA Exhibit6 COPY OF IA NO.6/2022 IN O.S.NO.68/2002 OF SUB COURT, KOTTARAKKARA Exhibit7 COPY OF THE OBJECTIONS FILED IN IA 6 & 7/2022 IN O.S.NO.68/2002 OF SUB COURT, KOTTARAKKARA Exhibit8 COPY OF ORDER DATED 19.03.2022 IN IA 6/2022 IN OS NO.68/2002 OF SUB COURT, KOTTARAKKARA Exhibit8(a) COPY OF ORDER DATED 19.03.2022 IN IA NO.7/2022 IN OS NO.68/2002 OF SUB COURT, KOTTARAKKARA RESPONDENT EXHIBITS Exhibit-R1(a) True copy of the Written statement in O. S. No. 68 of 2002 of the Sub Court, Kottarakara dated.22.11.2003 Exhibit-R1(b) True copy of the judgment in R.F.A. No. 325 of 2010 before the Honourable High Court of Kerala dated.10.4.2013 Exhibit R1(c) A TRUE COPY OF THE PETITION AND AFFIDAVIT DATED 30-05-2022 IN I.A. NO. 11/2022 IN I.A. NO. 2475/2013 IN O.S.

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Exhibit R1(d) A TRUE COPY OF THE ORDER DATED 16-08- 2022 IN I.A. NO. 11/2022 IN O.S. NO.

68/2002 OF THE SUB COURT, KOTTARAKARA