Dismissed

Sivaprasad v. Divya Prasannan

Kerala HC1 Dec 2022Mat.Appeal/699/2017

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a petition to condone a delay of 1608 days in filing a matrimonial appeal. The court applied a strict approach, rejecting the appellant's reasons of being abroad and illness as insufficient due to a history of failing to diligently prosecute earlier applications to set aside a defaulted decree.

What did the court decide?

Petition for condonation of delay dismissed; consequential appeal also dismissed.

Sivaprasad Vs Divya Prasannan — Matrimonial and Divorce | Kerala HC (2022)

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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

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THURSDAY, THE 1^ST DAY OF DECEMBER 2022 / 10TH AGRAHAYANA,

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1944

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MAT.APPEAL NO. 699 OF 2017

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AGAINST THE ORDER/JUDGMENT IN IOP 711/2011 OF FAMILY COURT, THIRUVALLA

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APPELLANT/S:

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SIVAPRASAD

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AGED 37 YEARS,S/O. SIVARAJAN, SIVALAYAM HOUSE,MALAMEKKARA MURI, PERINGANADU VILLAGE,PALLICKAL,ADOOR TALUK, PATHANAMTHITTA DISTRICT

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BY ADVS. SRI.M.T.SURESHKUMAR SRI.R.RENJITH

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RESPONDENT/S:

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1 DIVYA PRASANNAN

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AGED 32 YEARS,THAPASYA HOUSE, MULAKKUZHAMURI,MULAKKUZHA VILLAGE, CHENGANNOOR TALUK,ALAPPUZHA DISTRICT 689 121

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2 SIVARAJAN

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AGED 66 YEARS, SIVALAYAM HOUSE, MALAMEKKARA MURI, PERINGANADU VILLAGE,PALLICKAL, ADOOR TALUK, PATHANAMTHITTA DISTRICT 689 645(NO MORE REPRESENTED BY THE APPELLANT AND RESPONDENTS 3 AND 4)

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3 LEELA SIVARAJAN AGED 58 YEARS, SIVALAYAM HOUSE,MALAMEKKARA MURI, PERINGANADU VILLAGE,PALLICKAL, ADOOR TALUK, PATHANAMTHITTA DISTRICT 689 645 4 RENJINI SHIBU AGED 38 YEARS, W/O. SHIBU, CHANRAKANTHAM, MYTHRI NAGAR, VALIYAVILA, THIRUVANANTHAPURAM 695 001 BY ADV SRI.K.V.ANIL KUMAR

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 01.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat.Appeal No.699 of 2017

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ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ.

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Mat.Appeal No.699 of 2017

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Dated this the 1^st day of December, 2022

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ORDER/JUDGMENT

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P.G. Ajithkumar, J.

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C.M.Appl.No.1 of 2017 in Mat.Appeal No.699 of 2017

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The appellant is the petitioner. He filed this petition under Section 5 of the Limitation Act, 1963 seeking to condone the delay of 1608 days in filing the appeal.

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Pursuant to notice, the 1^st respondent entered appearance. She has filed a counter affidavit.

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Heard the learned counsel appearing for the

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petitioner and the learned counsel appearing for the 1^st respondent.

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The 1^st respondent filed O.P.No.711 of 2011 before the Family Court, Thiruvalla, seeking a decree for return of money and gold ornaments said to have been given at the time of her marriage. The petitioner and his parents, who

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were respondents 2 and 3, were exparte. That original petition was decreed on 31.12.2012. The petitioner contends that he was working abroad and therefore he could not appear before the court. During that time, his father fell ill and he had to attend the matters connected to the treatment of his father. Eventually he died on 15.08.2012. Following dispute between the appellant and the 1^st respondent, the well-wishers interfered and there was assurance that the matter would be settled amicably. On that expectation, the appellant did not enquire much about the litigation. The appellant even had promised to transfer some of his properties in the name of his minor daughter. However, he later knew about the exparte decree, and he filed I.A.Nos.1266 and 1267 of 2013 before the Family Court seeking to set aside the exparte decree after condoning the delay of 150 days. Those applications happened to be dismissed for default on 23.07.2013. The appellant then filed I.A.Nos.94 and 95 of 2014 for condonation of delay and setting aside the exparte decree. Those applications were also

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dismissed. Hence, he filed I.A.No.1077 of 2016 for restoration of the said applications, which also met the same fate. I.A.No.1077 of 2016 along with two other interlocutory applications filed by him were dismissed on 10.11.2016. It was thereafter, the appellant filed this appeal and in that course, there occurred a delay of 1608 days. The appellant had been earnestly trying to settle the dispute and prosecuting the other petitions he has filed for getting the exparte decree set aside. In the said circumstances, there is sufficient reason for condonation of the delay.

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The 1^st respondent would contend that this petition was filed by the appellant without any bona fides. Although he filed several applications, he did not prosecute such applications diligently. All the applications filed by him for getting the exparte decree set aside are not mentioned in his affidavit. Following are the applications filed by him in that regard.-

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I.A. No.95 of 2014 and I.A. No. 96 of 2014

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I.A. No.861 of 2015 and I.A. No.862 of 2015

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I.A. No.863 of 2015 and I.A. No.864 of 2015

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I.A. No. 1242 of 2015 and I.A. No. 1243 of 2015 5. I.A. No.1076 of 2016 and I.A. No.1077 of 2016

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I.A. No.1342 of 2016 and I.A. No. 1343 of 2016

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The 1^st respondent filed a maintenance case

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claiming maintenance from the appellant, which was also allowed. She has filed execution petitions and the proceedings thereon have been going on. In the wake of those execution petitions only, the appellant has filed this appeal. He did not challenge the orders dismissing applications he has filed for condonation of delay and setting aside the exparte decree. Accordingly, the 1^st respondent seeks to dismiss the petition.

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The reasons stated by the appellant for condonation of the long delay of 1608 days are that he was abroad, he had to attend his ailing father and he was prosecuting interlocutory applications filed by him before the Family Court for setting aside the exparte decree and condonation of delay.

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This is a case where the appellant admittedly had filed interlocutory applications repeatedly for setting aside the

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exparte decree as well as for restoration of his applications which were dismissed for default. Almost in all the applications he filed, he did not show due diligence resulting in the dismissal for default. Such a person has now come forward with this appeal after a period of 1608 days stating that there was sufficient reason to condone the delay, since he was prosecuting the other applications.

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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 summarising 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

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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. Para.21 of the judgment reads thus;

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“21. From the aforesaid authorities the principles that can broadly be culled out are:

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21.1 There should be a liberal, pragmatic, justiceoriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

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21.2 The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

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21.3 Substantial justice being paramount and pivotal

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the technical considerations should not be given undue and uncalled for emphasis.

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21.4 No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

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21.5 Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

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21.6 It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

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21.7 The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

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

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21.9 The conduct, behaviour and attitude of a party

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relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

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21.10 If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

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21.11 It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

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21.12 The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. 21.13 The State or a public body or an entity representing a collective cause should be given some acceptable latitude.”

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[underlines supplied]

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11. In Rafeek and another v. K. Kamarudeen and

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another [2021 (4) KHC 34] a Division Bench of this Court held that, 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 SCC 107] , the concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play, as held

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by the Apex Court in Esha Bhattacharjee [(2013) 12 SCC 649] . Inordinate delay, which attracts doctrine of prejudice, warrants strict approach, whereas, a delay of short duration or few days, which may not attract doctrine of prejudice, calls for a liberal delineation.

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Indisputably the delay is inordinate. From the turn of events revealed from the rival contentions it is obvious that the appellant was well able to approach this Court for filing the appeal in time. He filed petitions one after the other before the Family Court, although he did not seriously prosecute those petitions. The lapse on his part is apparent.

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If it were a case where the appellant filed a petition for setting aside the exparte decree along with a petition for condonation of delay and the same happened to be dismissed, it could be said he was bona fide prosecuting that matter. That would have been a good reason for condonation of delay. It is not so here. The appellant filed applications in frequent intervals, but failed to pursue them with promptitude resulting in dismissal of all applications. In such circumstances it cannot

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be said that he was prosecuting such applications with bonafides.

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We are therefore of the view that a strict approach is required in this matter. No sufficient explanation for the delay has been furnished by the appellant. No documents to prove that the appellant was abroad and his father required prolonged treatment have been produced. The fact that he has filed a number of interlocutory applications before the Family Court is not an excuse for not challenging the appeal on merits by filing an appeal before this Court. In such circumstances, we are of the view that the reasons furnished

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by the appellants are insufficient to condone the delay of 1608 days. The petition is therefore dismissed.

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Since the petition for condonation of delay is dismissed,

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this appeal is also dismissed.

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