Kerala High Court

Ranjith vs Pramod Kumar on 23 January, 2025

Author: K.Babu

Bench: K. Babu

                                                      2025:KER:5211
CRP No.434 of 2018
                                 1




            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

                 THE HONOURABLE MR.JUSTICE K. BABU

  THURSDAY, THE 23RD DAY OF JANUARY 2025 / 3RD MAGHA, 1946

                        CRP NO. 434 OF 2018

       AGAINST THE JUDGMENT DATED 22.03.2018 IN CMA NO.137

OF 2016 OF II ADDITIONAL DISTRICT COURT, PALAKKAD

REVISION PETITIONER/APPELLANT/PETITIONER/DEFENDANT:

            RANJITH,
            AGED 48 YEARS,
            S/O.SIVANANDAN, HILL VIEW HOUSE,
            MUNDUR, PALAKKAD DISTRICT.


            BY ADV
            SRI.RAJESH SIVARAMANKUTTY

RESPONDENT/RESPONDENT/RESPONDENT/PLAINTIFF:

            PRAMOD KUMAR,
            AGED 42 YEARS,
            S/O. RAMACHANDRAN, KAZHUKUNNAM
            HOUSE,THIRUVALATHUR, PALAKKAD DISTRICT.


            BY ADVS.
            SRI.R.HARISHANKAR
            SMT.PARVATHY NAIR


      THIS CIVIL REVISION PETITION HAVING BEEN FIALLY HEARD
ON 23.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                                                                        2025:KER:5211
CRP No.434 of 2018
                                          2




                                   K.BABU, J.
                     -------------------------------------------
                           CRP No.434 of 2018
                ---------------------------------------------
             Dated this the 23rd day of January, 2025
                                   ORDER

The Revision Petitioner is the defendant in

O.S.No.637/2011 on the file of the Additional Sub Court,

Palakkad. The suit is for recovery of money. The respondent

is the plaintiff in the suit.

2. The parties will be referred to in terms of their

position in the Trial Court.

3. The suit was decreed ex-parte on 28.04.2013.

The defendant filed an application to set aside the ex-parte

decree under Order IX Rule 13 of the CPC along with an

application to condone the delay of 1041 days in filing the

application to set aside the ex-parte decree. The Trial Court

dismissed the applications. The defendant challenged the

orders of the Trial Court before the District Court, Palakkad

by filing CMA No.137/2016. The District Court confirmed the 2025:KER:5211

findings of the Trial Court.

4. The defendant challenges the judgment that

confirmed the orders dismissing the applications under

Order IX Rule 13 of the CPC and Section 5 of the Limitation

Act. The case of the defendant is that he was prevented

from challenging the ex-parte decree on the bonafide belief

that the matter will be settled in mediation. According to the

defendant, the plaintiff had assured that he would settle the

matter.

5. The plaintiff resisted the applications contending

that he never offered to settle the matter. The plaintiff

pleaded that the defendant even appeared in the Execution

Court and pleaded 'no means' to pay the decree debt.

According to the plaintiff, the petitions filed by the

defendant lack bonafide.

6. I have heard the learned counsel for the

defendant and the learned counsel for the plaintiff.

7. The learned counsel for the defendant submitted

that there were Mediation efforts progressing considerably 2025:KER:5211

long and only on account of its failure, he preferred the

applications belatedly. The learned counsel submitted that

there was no negligence or laches on the part of the

defendant. The learned counsel submitted that the

defendant had already deposited the decree debt and the

Trial Court fell into an error in thinking that the defendant is

wantonly guilty of allowing the exparte decree to befall

against him. The learned counsel further submitted that the

defendant has established sufficient cause for condoning

the delay of 1041 days in preferring the application under

Order IX Rule 13 of the CPC.

8. The learned counsel relied on Dwarika prasad

(D) Thr. Lrs v. Prithvi Raj Singh (2024 SCC OnLine SC

3828) in support of his contention. Relying on Dwarika

prasad, the learned counsel submitted that even without an

application for condonation of delay, the Court has ample

power to set aside an ex-parte decree. The learned counsel

urged that the Court shall not take a hyper technical view in

considering applications under Order IX Rule 13 of the CPC

and Section 5 of the Limitation Act. The learned counsel 2025:KER:5211

submitted that the procedural law shall not stand in the way

of doing justice to the parties. The learned counsel further

submitted that the defendant has not violated any rule of

law.

9. The learned counsel for the plaintiff resisted the

contentions and submitted that the defendant failed to

establish 'sufficient cause' for condoning the delay. It is

submitted that the suit was filed in the year 2011, and the

defendant even contested the execution proceedings

wherein he gave evidence and pleaded 'no means'. The

learned counsel submitted that the defendant failed to

establish that at any time there had been an attempt of

mediation or an offer on the part of the plaintiff to settle the

suit.

10. The question that arises for consideration is:-

Whether the defendant has established sufficient cause for

not preferring the application under Order IX Rule 13 of the

CPC within the statutory period.

11. The defendant seeks condonation of 1041 days 2025:KER:5211

delay in filing the application seeking to set aside the ex-

parte decree.

12. The expression "sufficient cause" contained in

Section 5 of the Limitation Act is elastic enough to yield

different results depending upon the circumstances of the

case. The criteria to be applied in condoning the delay in

different claims may be different. For example, in the case

of beneficial legislations a liberal interpretation must be

given to the expression "sufficient cause" to serve its

object. The concept of reasonableness demands that the

courts, while taking a liberal approach, must also consider

the rights and obligations of both the parties. When a right

has accrued in favour of one party due to gross negligence

of the other, the Court shall refrain from exercising the

discretionary relief. It is a settled legal proposition that law

of limitation may harshly affect a particular party but it has

to be applied with all its rigour when the Statute mandates

so. The Court has no power to extend the period of

limitation on equitable grounds. The statute of limitation is

founded on public policy, its aim being to secure peace in 2025:KER:5211

the community, to suppress fraud and perjury, to quicken

diligence and to prevent oppression. It seeks to bury all acts

of the past which have not been agitated unexplainably and

have from lapse of time become stale. (Vide: Basawaraj

and Another v. Special Land Acquisition Officcer

[(2013) 14 SCC 81])

13. In Halsbury's Laws of England (Fourth Edition,

Vol. 28, p. 407) the learned author comments thus:

"805. Policy of the Limitation Acts.--The courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence."

14. An unlimited limitation would lead to a sense of

insecurity and uncertainty, and therefore, limitation

prevents disturbance or deprivation of what may have been

acquired in equity and justice by long enjoyment or what

may have been lost by a party's own inaction, negligence or

laches (Vide: Basawaraj and Another v. Special Land

Acquisition Officcer [(2013) 14 SCC 81]).

2025:KER:5211

15. In P.Ramachandra Rao v. State of

Karnataka [(2002) 4 SCC 578 : 2002 SCC (Cri) 830],

the Supreme Court held that judicially engrafting principles

of limitation amounts to legislating and would fly in the face

of law laid down by the Constitution Bench in Abdul

Rehman Antulay v. R.S.Nayak [(1992) 1 SCC 225].

16. The expression "sufficient cause" should be

given a liberal interpretation to ensure that substantial

justice is done, but only so long as negligence, inaction or

lack of bona fides cannot be imputed to the party

concerned, whether or not sufficient cause has been

furnished, can be decided on the facts of a particular case

and no straitjacket formula is possible. (Vide: Madanlal v.

Shyamlal [(2002) 1 SCC 535 : AIR 2002 SC 100], Ram

Nath Sao v. Gobardhan Sao [(2002) 3 SCC 195 : AIR

2002 SC 1201]) and Basawaraj and Another v. Special

Land Acquisition Officer [(2013) 14 SCC 81]).

17. In Basawaraj (supra), the Supreme Court held

that 'sufficient cause' means that the party should not have 2025:KER:5211

acted in a negligent manner or there was a want of bona

fide on its part in view of the facts and circumstances of a

case or it cannot be alleged that the party has not acted

diligently or remained inactive. The Supreme Court further

held that the applicant must satisfy the court that he was

prevented by any "sufficient cause" from prosecuting his

case, and unless a satisfactory explanation is furnished, the

Court should not allow the application for condonation of

delay. The Court has to examine whether the mistake is

bona fide or was merely a device to cover an ulterior

purpose, the Supreme Court added.

18. In Basawaraj, the Supreme Court summarised

the law on the issue in the following way:-

"15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an 2025:KER:5211

order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."

19. In Ramlal, Motilal and Chhotelal v. Rewa

Coalfields Ltd. [(1962) 2 SCR 762 : AIR 1962 SC 361],

the Supreme Court observed thus:-

"In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decreeholder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light- heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan [(1890) ILR 13 Mad 269] "Section 5 gives the court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant."

20. The laws of limitation are founded on public

policy. Statutes of limitation are sometimes described as

"statutes of peace". An unlimited and perpetual threat of

limitation creates insecurity and uncertainty; some kind of 2025:KER:5211

limitation is essential for public order. The principle is based

on the maxim "interest reipublicae ut sit finis litium", that is,

the interest of the State requires that there should be end to

litigation but at the same time laws of limitation are a

means to ensure private justice suppressing fraud and

perjury, quickening diligence and preventing oppression.

The object for fixing time-limit for litigation is based on

public policy fixing a lifespan for legal remedy for the

purpose of general welfare. They are meant to see that the

parties do not resolt to dilatory tactics but avail their legal

remedies promptly. Salmond in his Jurisprudence states that

the laws come to the assistance of the vigilant and not of

the sleepy. (Vide: Pundlik Jalam Patil v. Executive

Engineer, Jalgaon Medium Project [(2008) 17 SCC

448]).

21. It is important to note that even after sufficient

cause has been shown a party may not be entitled to the

condonation of delay as a matter of right. The proof of

sufficient cause is a condition precedent for the exercise of

the discretionary jurisdiction vested in the Court by Section 2025:KER:5211

5 of the Limitation Act. When sufficient cause is established,

the application for condonation of delay has to be dismissed

on that ground alone. However, if sufficient cause is shown,

then the Court has to enquire whether in its discretion, it

should condone the delay. In such circumstances, the Court

considers all relevant facts especially diligence of the

parties or its bona fides. However, the scope of enquiry

while exercising the discretionary power after sufficient

cause is shown would naturally be limited only to such facts

as the Court may regard as relevant. The Court is not

expected to enquire into why the party was sitting idle by all

the time available to it. (Vide: Ramlal, Motilal and

Chhotelal v. Rewa Coalfields Ltd. [(1962) 2 SCR 762 :

AIR 1962 SC 361]).

22. In Dwarika prasad (supra), the Hon'ble

Supreme Court dealt with a case where the petitioner

therein had trusted his counsel to manage the suit

proceedings. It was a case where the petitioner was not

even aware of the ex-parte decree passed against him as

the counsel failed to inform him. In that circumstance, to do 2025:KER:5211

complete justice, the Hon'ble Supreme Court observed that

even without an application seeking condonation of delay,

the Court is empowered to set aside the ex-parte decree.

The facts in Dwarika prasad (supra) are clearly

distinguishable from the facts considered in the precedents

referred to above.

23. I shall consider the facts of the present case on

the touchstone on the principles discussed above. The suit

was instituted in the year of 2011. The ex-parte decree was

passed on 28.04.2013. The decree holder filed execution

petition on 22.02.2014. The defendant entered appearance

in the Execution Court on 20.11.2014 and filed objection on

11.03.2015. He filed an affidavit in lieu of chief examination

on 31.07.2015. He was examined as RW1 in the execution

proceedings on 18.02.2016. The Execution Court issued