Allowed

Robin George v. Sebastian P. Varghese @ Sebastian.P.v.

Kerala HC20 Dec 2021FAO/65/2021

Case brief

AI extract

What is this about?

The High Court of Kerala held that Section 9 of the Limitation Act does not apply to condonation of delay under Section 5. Allowing the appeal, the court affirmed the lower court's finding that the appellant's health issues constituted sufficient cause for the delay, setting aside the dismissal of the applications.

What did the court decide?

Condonation of delay for I.A.Nos. 1497 and 1498 of 2019 allowed on payment of costs of Rs. 5,000.

Robin George Vs Sebastian P. Varghese @… — Civil Procedure and Limitation | Kerala HC (2021)

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“C.R.”

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 20^TH DAY OF DECEMBER 2021 / 29TH AGRAHAYANA, 1943 F.A.O.NO. 65 OF 2021

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AGAINST THE ORDER DATED 18.06.2020 IN I.A.NO.1497 OF 2019 AND I.A.NO.1498 OF 2019 IN O.S.NO.101 OF 2016 OF THE

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ADDITIONAL SUB COURT-I, ERNAKULAM

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APPELLANT/PETITIONER/DEFENDANT:

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ROBIN GEORGE

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AGED 46 YEARS, S/O. A.P.GEORGE, AZHEEKKAKATH HOUSE, WINNERS ROAD, SOUTH CHITTOOR-682 027.

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BY ADVS. SRI.K.PAUL KURIAKOSE SRI.T.A.RAFEEK (CHERTHALA) SRI.K.HABEEBULLA

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RESPONDENT/RESPONDENT/PLAINTIFF:

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SEBASTIAN P. VARGHESE @ SEBASTIAN.P.V., S/O. P.D VARGHESE, PAYYAPALLY HOUSE, UDAYAMPEROOR, TRIPUNITHURA-682 307, REPRESENTED BY HIS POWER-OF-ATTORNEY HOLDER AND FATHER P.D.VARGHESE, S/O.DEVASSY,PAYYAPALLY HOUSE, UDAYAMPEROOR, TRIPUNITHURA-682 307.

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BY ADV ASHA B.MATHEW

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THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 02.12.2021, THE COURT ON 20.12.2021 DELIVERED THE FOLLOWING:

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F.A.O.No.65 of 2021

“C.R.”

JUDGMENT

Ajithkumar, J.

Issue is simple; but intricate. Do the provisions of Section 9 of the Limitation Act (for short ‘the Act’) have application to a motion under Section 5 of the Act?

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Last day for filing the application for setting aside the exparte decree was 20.05.2017, but filed only on 06.04.2019 with a delay of 696 days. Reason for the delay from 20.05.2017 to 19.06.2017 was not explained, but the reason for the remaining period was explained. Section 9 of the Limitation Act says that when the time for filing a suit or making an application starts running, it would not stop on account of a subsequent disability or inability. The learned Sub Judge held that the provisions of Section 9 applies to an application under Section 5 of the Act. Accordingly, the application filed by the appellant for condonation of delay was dismissed saying that the delay from 20.05.2017 to 19.06.2017 was not explained. Legality of the said finding is essentially in question in this appeal.

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F.A.O.No.65 of 2021

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The respondent filed O.S.No.101 of 2016 before the Sub Court, Ernakulam, for realisation of an amount of Rs.25 lakhs, together with its interest from the appellant and his assets. The appellant entered appearance in the suit on 30.07.2016. Time was granted to file written statement, but the appellant did not. As a result, the suit was decreed on 11.04.2017. The appellant filed I.A.No.1497 of 2019 for setting aside the exparte decree and I.A.No.1498 of 2019 for condonation of delay of 696 days. The respondent filed a written objection. The Sub Court after recording the oral evidence of the appellant as PW1 and receiving documentary evidence as Exts.A1 to A5, dismissed both the applications. Feeling aggrieved of the said orders, the appellant preferred this appeal.

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Heard the learned counsel for the appellant and also the learned counsel for the respondent.

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When we started, we thought that the issue is simple inasmuch as, a literal understanding of Section 9 gives the view that its provisions apply to suits and applications for

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the execution of decrees only and that too, when extension of period of limitation is claimed on account of legal disability or inability, which are reckoned in Section 6, namely, minority, insanity or idiocy.

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Section 5 of the Act does not say about extension of period of limitation. It says that where the Court is satisfied that there is sufficient cause, the delay occasioned in filing an appeal or application, other than one under Order XXI of the Code of Civil Procedure, 1908 can be condoned. The ultimate effect of both the provisions may be the same; that the person concerned gets an extended period of time for instituting the proceedings. But the two provisions hold totally different fields and the nature of jurisdiction to be exercised by the Courts is also different. One is extension of the period for the reason of legal disability which can precisely be ascertained, whereas the other is condonation of delay which always is at the discretion of the court. In that view of the matter, we were about to conclude that the finding of the learned Sub Judge is wrong. But the learned counsel

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appearing for the respondent, Advocate Asha B. Mathew stressed her arguments on the point that for want of explanation of the delay from 20.05.2017 to 19.06.2017, explanation for the delay for the subsequent period cannot be reckoned in view of the bar under Section 9 of the Act. That compelled us to ponder over the question in little depth.

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The purpose behind enacting the law of limitation was to prescribe a time limit for availing legal remedy for the

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grievance caused. The idea is that the legal remedy must be kept alive for a period fixed by the legislature [See: Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation and another [(2010) 5 SCC 459] . The law of limitation limits the time after which a suit or other proceedings cannot be maintained in Court [See:

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Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and others [(2013) 12

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SCC 649] . It implies that an action begun after the period of limitation has expired and is not maintainable.

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History of limitation legislations will help us to understand the moot question more easily. A codified law of limitation was first promulgated in India in 1859. It was the Limitation Act, 1859 (Act XIV of 1859). Subsequent statutes brought in force are the Indian Limitation Act, 1871, the Indian Limitation Act, 1908 and the Limitation Act, 1963. The Act of 1959 was a consolidation statute. There was no provision in it corresponding to Section 5 of the Limitation Act, 1963. In the Act of 1871, a provision for excusing the delay on showing sufficient cause was included as Section 5(b), it reads:

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'5(b). Any appeal or application for a review of judgment may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not presenting the appeal or making the application within such period.'

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In the Act of 1908 the provision for condonation of delay was added as the main part of Section 5 along with an explanation, which reads,-

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'5. Any appeal or application for a review of judgment or for leave to appeal or any other application to

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which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

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Explanation.- The fact that the appellant or applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this section.'

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Till the Act of 1963 came into effect, applications for execution of a decree were not specifically excluded from the purview of the provision allowing condonation of delay. It was for the first time in Section 5 of the 1963 Act, applications for execution of decrees coming under Order XXI of the Code, were excluded, which reads thus:

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‘5. Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.

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Explanation: The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.’

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We shall now consider what was the position and

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the changes brought about to Section 9 of the Act.

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Provisions allowing exclusion of period during which a person is under a legal disability or inability, have been there in the limitation law in India from the very beginning. In Act of 1859, there was Section XI, which reads,-

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'XI. If, at the time when the right to bring an action first accrues, the person to whom the right accrues is under a legal disability, the action may be brought by such person or his representative within the same time after the disability shall have ceased as would otherwise have been allowed from the time when the cause of action accrued, unless such time shall exceed the period of three years, in which case the suit shall be commenced within three years from the time when the disability ceased; but if, at the time when the cause of action accrues to any person, he is not under a legal disability, no time shall be allowed on account of any subsequent disability of such person or of the legal disability of any person claiming through him.' (underline supplied)

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There was an inbuilt provision to the effect that there was no disability at the time when the cause of action accrued, but arose on a subsequent point of time, the period of limitation shall not cease to run. Disabilities reckoned for

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the purpose of Section XI were mentioned in Section XII, which reads,-

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'XII. The following persons shall be deemed to be under legal disability within the meaning of the last preceding Section : married women in cases to be decided by English law, minors, idiots and lunatics.'

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In the successive legislations, the provision for extension of the period of limitation in respect of persons under legal disability has been retained, but as a separate section; Section 7 in 1871 Act, Section 6 in 1908 and 1963 Acts. The provision regarding continuous running of period of limitation on account of legal disability or inability has been retained in all the later legislations as a separate provision;

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Section 9. Section 9 in the Limitation Act, 1963 reads,-

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'9. Continuous running of time.—Where once time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it:

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Provided that where letters of administration to the estate of a creditor have been granted to his debtor, the running of the period of limitation for a suit to recover the debt shall be suspended while the administration continues.'

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We have extracted the above provisions in order to

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show that during the process of evolution of the Limitation

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Act, the provision regarding continuous running of the period of limitation in the cases of legal disability or inability has been there even when no provision for condonation of delay was incorporated in the statute. Initially, the rule of continuous running of the period of limitation was applicable to suits only. In the Acts of 1908 and 1963 applications for execution of decree were also brought within the ambit of provision governing continuous running of the period of limitation for the reason of legal disability or inability.

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In the successive statutes of limitation, provision concerning condonation of delay has never been made applicable to suits, whereas the provision regarding extension of the period of limitation for the reason of legal disability or inability and continuous running of the period has been made

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applicable to suits and, of course, after the Act of 1963, also to the applications for execution of the decree. Matters of condonation of delay have been treated separately and the provision regarding extension of the period of limitation and continuous running of the period in the cases of legal disability or inability has never been made applicable to such matters.

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Therefore, it is clear that the intention of the Legislature from the very beginning has been to treat the provisions concerning extension of time on account of legal disability and inability and applications for condonation of delay separately.

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‘Suit’ is not defined in the Act, but Section 2(l) says

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that suit does not include an appeal or an application. It certainly implies that the term has to be confined to the proceedings which are regulated and treated as suits, in other words only the original proceedings. Section 2(b), likewise, does not define an application but only states that it included a petition. Section 6 is made applicable to suits and applications for the execution of a decree. Section 5 of the Act, on the other hand, excludes from its ambit suits and

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applications under the provisions of Order XXI of the Code. The Apex Court in R. Rudraiah and another v. State of Karnataka and others [(1998) 3 SCC 23] held that in construing provisions in the law of limitation there shall not be any equitable consideration; and the strict grammatical meaning of the word is the safe guide. A grammatical interpretation of the provisions of Sections 5 and 6 certainly delineates the areas where these provisions have application.

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Section 5 applies only to appeals and applications except applications under Order XXI of the Code, while Section 6 applies to the suits and applications under Order XXI of the Code.

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In Abdul Salam v. Chalil Sajitha and another

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[2017 (2) KLT 936: 2017 (2) KHC 757] a Division Bench of this Court considered the question whether Section 6 of the Limitation Act applies to an application to set aside an ex parte decree. In that case, an ex parte decree passed by a Family Court was sought to be set aside after a period of 10 years and 40 days. One of the reasons set forth for the delay

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was minority of one of the petitioners. The petitioners contended that on the date of passing the decree, he was a minor and continued to be a minor even when the applications were filed and therefore the period of limitation would not run against him by virtue of the provisions under Section 6 of the Limitation Act. The Court held that the benefit of Section 6 will only apply for filing of a suit or filing an application for execution. It cannot be extended to an application to set aside an ex parte decree.

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Sections 6, 7 and 8 of the Act form a group which

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supplement each other. Sections 6 and 7 go together in so far as both the provisions spell about the extension of the period covering different situations, but reasons being only minority, insanity or idiocy. Section 6 deals with legal disability of a sole suitor or applicant, while Section 7 covers the cases where several persons have the right to sue or apply and one among them is under disability or inability. Section 8 stands as a proviso to Sections 6 and 7. Coming to Section 9, it specifically deals with cases of extension of time on account of disability or inability. Section 9 embodies the principle that

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the time for filing suit or application starts running, it will continue to run till it is exhausted. The certain meaning of this provision is that the period prescribed for filing of a suit or application, in the third schedule of the Act starts to run, it will not cease on account of any disability or inability. This provision therefore is an explanation to the provisions contained in Sections 6, 7 and 8, and it cannot have application to the provisions contained in Section 5 of the Act.

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20. In British Airways Plc. v. Union of India and

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others [(2002) 2 SCC 95] the Apex Court explained the principles of harmonious construction. It was held,

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'It is a cardinal principle of construction of a statute that effort should be made in construing the different provisions so that each provision will have its play and in the event of any conflict a harmonious construction should be given. The well known principle of harmonious construction is that effect shall be given to all the provisions and for that any provision of the statute should be construed with reference to the other provisions so as to make it workable. A particular provision cannot be picked up and interpreted to defeat another provision made in that behalf under the statute. It is the duty of the court to make such

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construction of a statute which shall suppress the mischief and advance the remedy. While interpreting a statute the courts are required to keep in mind the consequences which are likely to flow upon the intended interpretation.' (underline supplied)

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Reiterating the said principle, the Apex Court in

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Managing Director, Chhattisgarh State Cooperative Bank Maryadit v. Zila Sahkari Kendriya Bank Maryadit

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and others [(2020) 6 SCC 411] held that courts must ensure that every provision is construed in a manner to render seemingly contradictory provisions workable. In interpreting two provisions of a statute, courts must adopt the interpretation which does not defeat either provision and advances the remedy envisaged by their enactment.

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Section 9 of the 1963 Act is to the effect that where once time is begun to run, no subsequent disability or inability to institute a suit or application stops it. An application under Section 5 of the Act arises only when there has already occurred delay in filing an appeal or any application other than an application under any of the provisions of Order XXI of the Code. Sections 5 and 9 thus

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hold totally different fields. A harmonious construction of those provisions is therefore required. Provisions of Section 9 cannot be interpreted so as to restrict the operation of the provisions of Section 5 of the Act. Thus, in any view of the matter, it can only be said that the learned Sub Judge went wrong in applying the provisions of Section 9 of the Act for dismissing I.A. No. 1498 of 2019.

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The reasons stated for condonation of the delay was that the appellant was under treatment for a continuous period following the complications in connection with swallowing of a sharp fish bone and a surgery thereby necessitated. It is stated that he underwent surgery in June 2017 and had to have surgical interventions thrice thereafter. Being a chronic diabetic patient, persistent pain and perianal fistula were developed following the surgery. In the said circumstances, the appellant was not able to approach the counsel and file applications in time.

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The respondent controverted the said contentions.

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It was contended that after the decree was passed on

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11.04.2017, there was enough time for the appellant to approach the Court before his falling ill. The respondent accordingly submits that the reason stated is not sufficient to condone the delay.

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The learned counsel for the respondent further contended that the decree was passed under Order VIII, Rule 10 of the Code, and therefore, an application under Order IX, Rule 13 is not maintainable. The decision of the Calcutta High Court in Asha Singh and others v. Kamal Kumar Rathi and others [AIR 2021 Cal.60 : 2021 KHC 2185] was placed reliance also in this regard. In the decision it was held that the defendant on receipt of the summons asking him to file the written statement, if any, failed to file the written statement within the time prescribed under Order VIII, Rule 1 of the Code and that resulted in passing of the decree. The court held that in the peculiar facts and circumstances of that case, the provisions of Order IX, Rule 13 of the Code was not applicable. The Division Bench of this Court in Mathes Trading Co. v. Relish Foods (P) Ltd. [ILR 1995 (3) Ker.710: 1995 KHC 357]

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held that in a case where a decree was passed under Order VIII, Rule 10 for the failure of the defendant to file a statement, an application under Order IX, Rule 13 is maintainable. In view of that, the said contention of the respondent is untenable.

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The exparte decree was passed on 11.04.2017. Being thirty days is the period provided in Article 123 of the Act for filing a petition for setting aside an exparte decree, the appellant ought to have filed the petition on or before 12.05.2017. That day was during the summer recess, and therefore, by virtue of the provisions of Section 4 of the Act, the application should have been filed on the reopening day, which was on 20.05.2017. But after a delay of 696 days only the application to set aside the decree was filed.

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There is no rule to guide as to when can courts record satisfaction about sufficiency of reason mentioned in Section 5 of the Act. It is for the court to consider in an objective way the materials before it and record its satisfaction or not about the sufficiency of the cause. Even if there have been intervals between the disabling factors, it is

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for the court to decide whether the person was justified in not approaching the court in time.

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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, which subserves the ends of justice, that being the lifepurpose for the existence of the institution of Courts.

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In Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649] the Apex Court while summerising 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

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apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

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In Esha Bhattacharjee , after summerising the principles applicable while dealing with an application for condonation of delay, the Apex Court added some more guidelines taking note of the present day scenario, that an application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring

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the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

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This Court in Rafeek and another v. K. Kamarudeen and another [2021 (4) KHC 34] observed,

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'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

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SCC 107 : 1987 KHC 911] the concept of liberal 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 : 2013 KHC 4725] .'

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After such discussion, the Court in Rafeek (supra)

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held that the Law of Limitation is founded on public policy to ensure that the parties to a litigation do not resort to dilatory tactics and seek legal remedy without delay and in an application filed under Section 5 of the Act, the court has to condone the delay if sufficient cause is shown.

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When oral testimony of PW1 is considered in the light of Exts.A1 to A3, it can only be said that the appellant was prevented by sufficient cause from filing I.A.Nos.1497 and 1498 of 2019 in O.S.No.101 of 2006 on time. Viewed in the light of the above principle of law, we hold that the delay occurred in filing the said applications is sufficiently explained.

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In view of what is stated above, the appeal is liable to be allowed on payment of costs to mitigate the inconvenience caused to the respondent on account of the delay. We deem it

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appropriate that Rs.5,000/- is the reasonable amount of costs. Hence, the appeal is allowed. Costs of Rs.5,000/- shall be paid to the respondent by the appellant within a period of two weeks from the date of getting a certified copy of this judgment. On such payment I.A.Nos.1497 and 1498 of 2019 in O.S.No.101 of 2016 will stand allowed. The Sub Judge, Ernakulam shall thereupon restore O.S.No.101 of 2016 on file and proceed in accordance with law.

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Sd/-

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ANIL K. NARENDRAN, JUDGE

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Sd/-

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P.G. AJITHKUMAR, JUDGE

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dkr

Robin George v. Sebastian P. Varghese @ Sebastian.P.v.

Case brief

What is this about?

What did the court decide?

Robin George v. Sebastian P. Varghese @ Sebastian.P.v.

Case brief

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What did the court decide?

What the court decided

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