Point of Law: 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.

JUDGMENT :

SHOBA ANNAMMA EAPEN, J.

This appeal is filed by the defendants in O.S.No.106 of 2013 on the file of the Sub Court, Pathanamthitta. They filed IA No.833 of 2016 along with IA No.834 of 2016 seeking to set aside the ex-parte decree in the suit and to condone the delay of 931 days. The Sub Court dismissed the applications by separate orders dated 29.09.2018. Challenging the order in IA No.833 of 2016, the appellants have preferred this appeal under Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908.

2. The case of the appellants is that on receipt of summons in the year 2013 in O.S.No.106 of 2013, the appellants/defendants entrusted vakalath and concerned documents to Adv.Rino Vadakkethara, but, the Advocate failed to inform about the progress of the case and it is only on 10.09.2016, when the appellants/defendants received a copy of execution petition filed before the Sub Court, Chengannoor, they came to know about the ex parte decree. On getting notice in the execution petition, they filed I.A.No.833 of 2016 along with IA No.834 of 2016 in O.S.No.106 of 2013, whereby, they maintained that there was no laches or negligence on their part.

3. The respondent-plaintiff filed a counter statement denying the said contentions of the appellants-defendants. The respondent-plaintiff would contend that the defendants had received the summons in the suit and it was the duty of the defendants to file written statement and contest the case. Further, it was contended that there is a delay of 931 days in filing the application and no satisfactory reasons have been given for the delay and that the appellants/defendants are deliberately prolonging the matter by filing Interlocutory Applications, and therefore, there is laches and negligence on their part.

4. The learned counsel appearing for the appellants would submit that sufficient cause was stated in the affidavit for their non appearance before the court below and for the delay in filing the application. According to the learned counsel, the appellants/defendants could not contest the case because they were unaware of the posting of the case and the Advocate, who was entrusted with vakalath, failed to inform the appellants/defendants regarding the status of the case. The learned counsel further submits that the appellants have strong contentions in the case and one more opportunity may be granted for them to contest the case.

5. 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 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:

21.1 There should be a liberal, pragmatic, justice-oriented, 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