The High Court of Kerala dismissed an appeal seeking to set aside an ex-parte decree and condone a 1729-day delay. Finding the appellants failed to substantiate their reasons for non-appearance and the delay, the court held the Family Court's order was correct.
The appeal was dismissed; the Family Court order dismissing the interlocutory applications was upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN &
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
WEDNESDAY, THE 15TH DAY OF FEBRUARY 2023 / 26TH MAGHA, 1944 MAT.APPEAL NO. 983 OF 2015
AGAINST THE ORDER DATED 20.06.2015 IN I.A.NOS.4937 AND 4936 OF 2014 IN O.P.NO.173 OF 2008 ON THE FILES OF THE FAMILY COURT,THRISSUR
APPELLANTS:
AGED 65 YEARS, W/O SIVADASAN. C, THYPARAMBATH HOUSE, PERINGOTTUKKARA PO, THRISSUR.
S/O SIVADASAN. C, THYPARAMBATH HOUSE, PERINGOTTUKKARA PO , THRISSUR.
BY ADV SRI.DILIP J. AKKARA
RESPONDENTS:
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3 MINOR ANAMIKA, D/O BHARATHARAJ, KUNNATH HOUSE, THANNYAM VILLAGE,DESOM, THRISSUR.
S/O SIVADASAN C. THYAPARAMBATH HOUSE,THANNYAM VILLAGE, DESOM THRISSUR. (DELETED)*
*THE NAME OF FOURTH RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS/PETITIONERS AS PER ORDER DATED 09.08.2019 IN IA 1/2019 IN MAT.APPEAL 983/15.
BY ADVS. SRI.C.HARIKUMAR SRI.RENJITH RAJAPPAN
THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 08.02.2023, THE COURT ON 15.02.2023 DELIVERED THE FOLLOWING:
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JUDGMENT
P.G. Ajithkumar, J.
The appellants are respondent Nos.2 to 4 in O.P.No.173 of 2008 on the files of the Family Court, Thrissur. An exparte decree was passed in O.P.No.173 of 2008 on 23.01.2010. The appellants filed I.A.Nos.4937 of 2014 and 4936 of 2014 seeking to condone the delay of 1729 days and to set aside the exparte decree. The Family Court as per the order dated 20.06.2015 dismissed those applications. Aggrieved thereof, the appellants preferred this appeal under Section 19(1) of the Family Courts Act, 1984.
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and the 4th respondent received notice and entered appearance in O.P.No.173 of 2008. A counselling session taken place, which did not fructify. Although several adjournments were availed, the appellants and the 4th respondent did not file their objection. Accordingly, they were set exparte and a decree was passed on 23.01.2010.
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proceedings on the belief that the 4th respondent was taking necessary steps to defend the case in a proper manner. It is the case of the appellants that only when they received notice in the execution proceedings, they came to know that a decree was passed and immediately they filed the present interlocutory application.
2 SCC 107] , in the context of Section 5 of the Limitation Act,
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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.
8. 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;
“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.
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.
21.3 Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
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.
21.5 Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
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.
21.7 The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8 There is a distinction between inordinate delay
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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.
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.
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.
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.
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.”
[underlines supplied]
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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 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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principle of prejudice which insists on taking a strict approach, if there is long delay, applies in this case. But the appellants did not place on record any evidence or material to explain the delay. Applying the principles laid down in the aforesaid
decisions, we are of the view that the appellants failed to discharge their burden. In the event of setting aside the decree, after such a long period, that will cause serious prejudice to respondents 1 to 3, who are the wife and children of the 4th respondent.
In such circumstances, we are of the view that the order dated 20.06.2015 dismissing I.A.Nos.4937 and 4936 of 2014 in O.P.No.173 of 2008 does not suffer from any infirmity and not liable to be interfered with. The appeal therefore fails and the same is dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/P.G. AJITHKUMAR, JUDGE
dkr
3 issues framed by the court
Whether the appellants can condone a delay of 1729 days in setting aside an ex-parte decree.
Whether the appellants discharged the burden of explaining the inordinate delay.
Whether setting aside the decree after such a long delay would cause serious prejudice to the respondents.
Colour shows how this judgement treated each authority
Collector, Land Acquisition v. KatijiReferred¶42
Collector, Land Acquisition v. Katiji [(1987) 2 SCC 107] · Who else cites this
Esha Bhattacharjee v. Raghunathpur Nafar AcademyExplained¶47
Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649] · Who else cites this
Rafeek and another v. K. Kamarudeen and anotherApplied¶70
Rafeek and another v. K. Kamarudeen and another [2021 (4) KHC 34]
SANTHAKUMARI
SUNIL
INDIRA
PRIYA
ADITHYAN
ANAMIKA
ANIL K.NARENDRAN
P.G. AJITHKUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
