Allowed

Dr.Gracy Abraham v. Joseph and Others

Kerala HC9 Aug 2023FAO/322/2010

Case brief

AI extract

What is this about?

The High Court allowed the first appeal against the dismissal of applications for condonation of delay and restoration of a suit for specific performance. The court condoned a 48-day delay based on mistaken date notation and amicable settlement negotiations, restoring the suit to the Sub Court file.

What did the court decide?

Appeal allowed; I.A.Nos.3005/2008 allowed; O.S.No.592/2006 restored to file; Sub Judge directed to dispose within four months.

Dr.Gracy Abraham Vs Joseph and Others — Specific Performance | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 9^TH DAY OF AUGUST 2023 / 18TH SRAVANA, 1945

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F.A.O. NO. 322 OF 2010

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AGAINST THE ORDER DATED 10.07.2009 IN I.A.NOS.3005 AND 3006 OF 2008 IN O.S.NO.592 OF 2006 OF THE SUB COURT,ERNAKULAM

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APPELLANT/PETITIONER/PLAINTIFF:

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DR.GRACY ABRAHAM AGED 50, W/O.ABRAHAM, PERINGATTU HOUSE,, UDAYAMPEROOR, MANAKUNNAM VILLAGE, KANAYANNUR TALUK.

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BY ADV SRI.ABRAHAM P.GEORGE

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1 JOSEPH (DIED)*, AGED 72, S/O.MOOLAYIL MATHAI, MOOLAYIL HOUSE, NADUVILAMGATTU, MAMPUZHA, KEECHERI VILLAGE, KANAYANNUR TALUK.

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2 ANTONY, AGED 69, S/O.MOOLAYIL MATHAI, MOOLAYIL HOUSE, NADUVILAMGATTU, MAMPUZHA, KEECHERI VILLAGE, KANAYANNUR TALUK.

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3 THOMAS (DIED), AGED 62, S/O.MOOLAYIL MATHAI, MOOLAYIL HOUSE, NADUVILAMGATTU, MAMPUZHA, KEECHERI VILLAGE, KANAYANNUR TALUK.**

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4 MARIYAM, AGED 72, W/O LATE JOSEPH, MOOLAYIL HOUSE, NADUVILAMGATTU, MAMPUZHA, KEECHERI VILLAGE, KANAYANNUR TALUK.*

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5 MATHAI, S/O JOSEPH, MOOLAYIL HOUSE, NADUVILAMGATTU, MAMPUZHA, KEECHERI VILLAGE, KANAYANNUR TALUK.*

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F.A.O.322 of 2010

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6 GEORGE, AGED 50, S/O JOSEPH, MOOLAYIL HOUSE, NADUVILAMGATTU, MAMPUZHA, KEECHERI VILLAGE, KANAYANNUR TALUK.*

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7 THOMAS @ TOMY, AGED 47, MOOLAYIL HOUSE, NADUVILAMGATTU, MAMPUZHA, KEECHERI VILLAGE, KANAYANNUR TALUK.*

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8 ELSAMMA, AGED 42, D/O JOSEPH, MOOLAYIL HOUSE, NADUVILAMGATTU, MAMPUZHA, KEECHERI VILLAGE, KANAYANNUR TALUK.*

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9 VALSAMMA, AGED 42, D/O JOSEPH, MOOLAYIL HOUSE, NADUVILAMGATTU, MAMPUZHA, KEECHERI VILLAGE, KANAYANNUR TALUK.*

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10 THRESIAMMA, W/O LATE THOMAS, MOOLAYIL HOUSE, NADUVILAMGATTU HOUSE, MAMPUZHA, KEECHERI VILLAGE, KANAYANNUR TALUK, PIN 682 315.**

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11 SHAJI, S/O LATE THOMAS, MOOLAYIL HOUSE, NADUVILAMGATTU HOUSE, MAMPUZHA, KEECHERI VILLAGE, KANAYANNUR TALUK, PIN 682 315.**

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*IMPLEADED AS ADDITIONAL RESPONDENTS 4 TO 9 AS PER ORDER DATED 09.08.2023 IN I.A.NO.7 OF 2011

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**IMPLEADED AS ADDITIONAL RESPONDENTS 10 AND 11 AS PER ORDER DATED 09.08.2023 IN I.A.NO.5 OF 2011.

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R2 BY ADV SRI.M.MANOJKUMAR CHELAKKADAN

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R4 TO R11 BY SRI.ABRAHAM P.GEORGE

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THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 09.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

F.A.O.322 of 2010

JUDGMENT

P.G. Ajithkumar, J.

The plaintiff in OS 592 of 2006 on the file of the Sub Court, Ernakulam, is the appellant. The suit was dismissed for default on 04.03.2008. The appellant filed I.A.No.3005 of 2008 under Order IX, Rule 9 of the Code of Civil Procedure, 1908 along with I.A.No.3006 of 2008 for condonation of delay of 48 days in filing the former application. The Sub Court dismissed both those petitions as per the orders dated 10.07.2009. The appellant preferred this appeal challenging the said orders, under Order XLIII, Rule 1(c) of the Code.

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There was a delay of three days in filing the appeal. The delay was condoned. During the pendency of this appeal, respondent Nos.1 and 3 expired and their legal representatives were impleaded as additional respondents 4 to 11.

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Despite publication of notice in the newspaper, additional respondents did not choose to appear before this Court.

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F.A.O.322 of 2010

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Heard the learned counsel appearing for the

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appellant.

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O.S.No.592 of 2006 was filed by the appellant seeking a decree of specific performance of agreement for sale dated 14.03.2006. The defendants resisted the suit by filing written statement. The suit was scheduled for trial on 04.03.2008. On that date, the appellant failed to turn up and therefore the suit was dismissed for default.

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The appellant stated that the date of posting of the case was mistakenly noted as 09.03.2008 and therefore neither the appellant nor his counsel could appear before the court. After dismissal of the suit, there was a proposal for settling the dispute between the parties and the appellant bona fide believed that there could be an amicable settlement. Therefore, he did not soon file the application for restoration of the suit. Since the proposal of the agreement was not materialised, the appellant has filed I.A.Nos.3005 and 3006 of 2008.

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F.A.O.322 of 2010

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The learned Sub Judge dismissed the application

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for condonation of delay as per the following order:-

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“The reason for delay is expectation of settlement. But each and every days, delay is not explained in the affidavit. Petitioner has not mounted to the box also for stating the reason for delay. Hence the delay cannot be condoned. I.A. is dismissed.”

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In Collector, Land Acquisition v. Katiji [(1987)

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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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9. In Esha Bhattacharjee v. Raghunathpur Nafar

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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 reasonableness and it cannot be allowed a totally unfettered free play. The Apex Court held further that, there is a

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F.A.O.322 of 2010

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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. 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 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

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F.A.O.322 of 2010

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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 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

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F.A.O.322 of 2010

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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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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

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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 by the Apex Court in Esha Bhattacharjee [(2013) 12 SCC 649] . Inordinate delay, which attracts doctrine of prejudice,

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F.A.O.322 of 2010

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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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The period of delay in filing petition for restoration of the suit was 48 days. Two reasons were stated in the affidavit of the appellant, namely, the date of posting of the case was mistakenly noted by the clerk of his counsel and that on account of the proposal for settling the dispute amicably, the appellant waited for a positive result. When the attempts for settlement were failed, the appellant had filed the petition for restoration of the suit. It is seen that the said assertions of the appellant are probable and genuine. Considering the period of delay, a lenient view is required to be taken in the matter in the light of the law laid down in the aforesaid decisions. Therefore, we hold that delay of 48 days in filing the petition for restoration is liable to be condoned and the suit is ordered to be restored.

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Accordingly, we allow this appeal. On setting the impugned orders, I.A.Nos.3005 and 3006 of 2008 are

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F.A.O.322 of 2010

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allowed. O.S.No.592 of 2006 on the file of the Sub Court, Ernakulam is restored on file.

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The suit is of the year 2006. Therefore, the learned Sub Judge shall make every endeavour to dispose of the suit, as expeditiously as possible, within a period of four months from the date of appearance of the parties/completion of service.

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Sd/ANIL K. NARENDRAN, JUDGE

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Sd/P.G. AJITHKUMAR, JUDGE

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dkr

Dr.Gracy Abraham v. Joseph and Others

Case brief

What is this about?

What did the court decide?

Dr.Gracy Abraham v. Joseph and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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