Dismissed

Shajan V.S. v. Nisha Shajan

Kerala HC3 Feb 2023Mat.Appeal/639/2022

Case brief

AI extract

What is this about?

The Court dismissed a Matrimonial Appeal barred by limitation. A C.M. application seeking to condone a 1827-day delay was rejected due to the appellant's gross negligence, evident from dismissed interim petitions and failure to pay court costs, establishing no sufficient cause under the Limitation Act.

What did the court decide?

C.M. Application No.1 of 2022 dismissed; Matrimonial Appeal No.639 of 2022 dismissed as barred by limitation.

Shajan V.S. Vs Nisha Shajan — Matrimonial and Divorce | Kerala HC (2023)

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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 FRIDAY, THE 3^RD DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944 MAT.APPEAL NO.639 OF 2022

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AGAINST THE EX-PARTE ORDER DATED 20.02.2015 IN O.P.NO. 847 OF 2013 OF FAMILY COURT,ERNAKULAM APPELLANT/RESPONDENT:

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SHAJAN V.S. AGED 47 YEARS S/O.LATE SASI, FACT TOWNSHIP, NO.OD 69, UDYOGAMANDAL P.O., ELOOR- 683 501, PIN - 683501 BY ADVS. R.LEELA M.SREELAKSHMI ARUN SEBASTIAN

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RESPONDENT/PETITIONER:

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NISHA SHAJAN AGED 44 YEARS W/O.SHAJAN, AZHAKIYAPARAMBIL, MUSLIM STREET, ERNAKULAM- 682 035 BY ADV. LAKSHMI B.SHENOY

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 23.01.2023, THE COURT ON 03.02.2023 DELIVERED THE FOLLOWING:

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Mat.Appeal No.639 of 2022

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

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-----------------------------------------------------

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Mat.Appeal No.639 of 2022

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-----------------------------------------------------Dated this the 3^rd day of February, 2023

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O R D E R /J U D G M E N T

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P.G.Ajithkumar, J.

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C.M Application No.1 of 2022

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This is an application filed under Section 5 of the Limitation Act, 1963. There is a delay of 1827 days in filing the appeal.

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On 20.09.2022, consolidated notice was ordered in

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the C.M. Application and the appeal. Respondent entered appearance and filed a counter affidavit.

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Heard the learned counsel appearing for the

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appellant and the learned counsel appearing for the respondent.

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O.P.No.847 of 2013 was filed by the respondent for

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a decree of return of gold ornaments and recovery of money. The appellant remained ex parte. An ex parte decree allowing

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the respondent to recover 54.5 sovereigns of gold ornaments

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or its value and realisation of Three lakhs was passed on

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Mat.Appeal No.639 of 2022

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20.02.2015.

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The appellant filed I.A. No.2819 of 2016 seeking to

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set aside the ex parte decree on 26.05.2018. That petition was accompanied by I.A.No.2818 of 2016 for condonation of delay of 386 days. Those petitions were dismissed for default. Hence the appellant filed petitions for restoration along with a petition to condone the delay of 89 days. On 19.06.2019, those interlocutory applications, 4 in number, were dismissed for default. The appellant therefore filed 8 interlocutory applications (I.A Nos.2009 to 2011 of 2020 & 2013 to 2017 of 2020) for restoration of the earlier petitions that were dismissed for default after condoning delay. The Family Court after considering the objections filed by the respondents allowed aforesaid 8 petitions on the condition of payment of a cost of Rs.2000/-on each petition. The cost was not paid in time, instead the appellant sought extension of time. The Family Court extended the time till 06.07.2022. However, the appellant failed to make payment resulting in dismissal of those interlocutory applications.

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Thereafter, the appellant has filed this Mat.Appeal

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Mat.Appeal No.639 of 2022

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under Section 19(1) of the Family Courts Act, 1984 challenging the decree dated 20.02.2015. Pointing out those developments, the appellant seeks to condone the delay of 1827 days in filing the appeal. The appellant would contend that there was no laches or negligence on his part.

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The respondent filed a detailed counter affidavit. Chronology of the filing and dismissal of various interlocutory applications from the date of the decree till filing of this appeal has been narrated in the counter affidavit. It is further contended that the appellant never has been diligent and he adopted such a tactics of filing petitions one after the other to delay execution of the decree. In the light of so many applications for setting aside the ex parte orders and the decree, all of which were dismissed, the appellant is not entitled to file the present appeal. Accordingly, the respondent seeks to dismiss the C.M application.

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8. Details of the petitions filed by the appellant before

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the Family Court given in the counter affidavit are extracted below:

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Case/1.A. No & details Order passed by this Hon'ble

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Mat.Appeal No.639 of 2022

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		Court
1	O.P.No.847 of 2013 filed by Nisha seeking recovery of gold and money and other monetary claims.	Allowed by Exparte judgment dated 20.02.2015
2	I.A.No.2819 of 2016 filed by Shajan seeking to set aside exparte decree dated 20.02.2015.	Dismissed on 26.05.2018 for non representation
3	I.A.No.2818 of 2016 filed by Shajan to condone delay of 386 days in filing I.A.No.2819 of 2016	Dismissed on 26.05.2018 for non representation
4	I.A.No.4024 of 2018 filed by Shajan seeking to restore I.A.No.2818 of 2016.	Dismissed on 19.06.2019 for non representation
5	I.A.No.4025 of 2018 filed by Shajan to condone delay of 89 days in filing I.A.No.4024 of 2018.	Dismissed on 19.06.2019 for non representation
6	I.A.No.4026 of 2018 filed by Shajan seeking to restore I.A.No.2819 of 2016.	Dismissed on 19.06.2019 for non representation
7	I.A.No.4027 of 2018 filed by Shajan to condone delay of 89 days in filing I.A.No.4026 of 2018.	Dismissed on 19.06.2019 for non representation
8	I.A.No.2009 of 2020 is filed by Shajan to condone delay of 317 days in filing I.A.2015 of 2020.	Dismissed on 06.07.2022 as cost ordered by the Trial Court was not paid
9	I.A.No.2010 of 2020 is filed by Shajan to condone delay of 317 days in filing I.A.2017 of 2020.	Dismissed on 06.07.2022 as cost ordered by the Trial Court was not paid
10	I.A.No.2011 of 2020 is filed by Shajan to condone delay of 317 days in filing I.A.2014 of 2020.	Dismissed on 06.07.2022 as cost ordered by the Trial Court was not paid
11	I.A.No.2013 of 2020 is filed by Shajan to condone delay of 317 days in filing I.A.2016 of 2020.	Dismissed on 06.07.2022 as cost ordered by the Trial Court was not paid

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Mat.Appeal No.639 of 2022

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12	I.A.No.2015 of 2020 is filed by Shajan to restore I.A.No.4026 of 2018	Dismissed on 06.07.2022 as cost ordered by the Trial Court was not paid
13	I.A.No.2016 of 2020 is filed by Shajan to restore I.A.No.4027 of 2018	Dismissed on 06.07.2022 as cost ordered by the Trial Court was not paid
14	I.A.No.2017 of 2020 is filed by Shajan to restore I.A.No.4024 of 2018	Dismissed on 06.07.2022 as cost ordered by the Trial Court was not paid
15	I.A.No.2014 of 2020 is filed by Shajan to restore I.A.No.4025 of 2018	Dismissed on 06.07.2022 as cost ordered by the Trial Court was not paid

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The said events are not disputed. From perusal of the said details, it is evident that the appellant has been negligent in defending O.P.No.847 of 2013 and prosecuting various interlocutory applications filed by him. The petitions he has filed lastly before the Family Court were in fact allowed on condition of payment of cost. He did not avail that opportunity by making payment of the cost.

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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

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Mat.Appeal No.639 of 2022

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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 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 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

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Mat.Appeal No.639 of 2022

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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 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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Mat.Appeal No.639 of 2022

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

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another [2021 (4) KHC 34] a Division Bench of this Court

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held that, though the expression ‘sufficient cause’ employed in Section 5 of the Limitation Act, 1963 is adequately elastic to

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Mat.Appeal No.639 of 2022

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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 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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From the narration of facts, herein before, it is evident that the appellant was so negligent in prosecuting the applications he has filed before the Family Court. He does not explain the reasons for his absence before the Family Court each time. When those applications were dismissed, all for his default in either appearing in Court or making payment of the cost, the appellant cannot contend that he was bonafide prosecuting those petitions so as to avail the benefit of Section 14 of the Limitation Act. In the light of the law laid down in the aforesaid decisions, the appellant has the

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Mat.Appeal No.639 of 2022

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obligation to explain with sufficient details the cause for the delay. But the appellant failed to offer satisfactory explanation for the delay which is inordinate. Therefore, we are of the view that C.M.Application No.1 of 2022 which was filed for

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condoning the delay of 1827 days is not liable to be allowed.

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C.M.Application No.1 of 2022 is accordingly dismissed. Mat.Appeal No.639 of 2022

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Since, C.M.Application No.1 of 2022 is dismissed, this appeal is also dismissed as barred by the law of limitation.

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Sd/- ANIL K. NARENDRAN, JUDGE

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Sd/- P.G. AJITHKUMAR, JUDGE

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Mat.Appeal No.639 of 2022

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APPENDIX OF MAT.APPEAL 639/2022

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PETITIONER'S ANNEXURES Annexure A1 THE TRUE COPY OF THE ORDER DATED 07.01.2017 IN CRL.M.C.NO.2/2011 OF THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM Annexure A2 THE TRUE COPY OF THE JUDGMENT DATED 09.03.2022 IN OP (FC) NO.289/2020 OF THE HON'BLE HIGH COURT OF KERALA

Shajan V.S. v. Nisha Shajan

Case brief

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Shajan V.S. v. Nisha Shajan

Case brief

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