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2024 Supreme(Online)(KER) 20435
HIGH COURT OF KERALA
Sathish Ninan, JOHNSON JOHN, JJ
P.V. JOSEPH – Appellant
Versus
ANOOP C.V – Respondent
FAO 62/2024
ALEX K.JOHN, REMYA MURALI, JILCY JACOB, NINAN THOMAS, ANNA PHILIP, K.SHAJ, S.AJITH PRABHAV(K/950/1990), BEENA N.KARTHA(K/671/1995), C.IJLAL(K/826/2013), ARUN CHANDY(K/879/2011), BHARAT VIJAY P.(K/000976/2018), KEVIN JAMES(K/001344/2018), MINU VITTORRIA PAULSON(K/739/2020), GOPIKA GOPAL(K/643/2023)
The court reinforced that negligence in legal representation can preclude the granting of relief from an ex-parte decree under the Limitation Act.
Headnote:
Limitation - Ex-parte Decree - Limitation Act - Section 5 - The court emphasized the necessity of demonstrating sufficient cause for delay in filing petitions, highlighting the importance of diligence and the consequences of negligence in legal representation.
Fact of the Case:
The appellants, defendants in a suit, sought to condone a delay of 1059 days in filing a petition to set aside an ex-parte decree, claiming they were unaware of the proceedings due to their lawyer's negligence.
Finding of the Court:
The court found that the appellants failed to establish sufficient cause for the delay, noting inconsistencies in their claims and a lack of diligence in pursuing their case.
Issues: Whether the appellants established sufficient cause to condone the delay of 1059 days and whether the impugned order is legally sustainable.
Ratio Decidendi: The court held that the discretion to condone delay under Section 5 of the Limitation Act must be exercised within reasonable bounds, and negligence on the part of the appellants was evident.
Final Decision: The appeal and I.A No.4 of 2024 are dismissed.
JOHNSON JOHN, J The appellants are defendants in O.S No.11 of 2015 on the file of the Court of the Subordinate Judge, Thiruvalla. An ex-parte decree was passed against the defendants on 31-01-2019. Application filed under Section 5 of the Limitation Act to condone the delay of 1059 days in filing the petition to set aside the ex-parte decree and the petition to set aside the ex-parte decree were dismissed by the trial court as per the impugned order in I.A No.1 of 2022 and Restoration Petition No. 2 of 2022 dated 19-12-2023.
2.In the affidavit in support of the petition to condone the delay, it is stated that the petitioners came to know about the ex-parte decree only on 30-10-2021. It is stated that they received notice of the case in the year 2015. According to the petitioners, they engaged Adv.K.K.Sethukumar to conduct the case. But the said lawyer did not inform the petitioners about the proceedings of the case.
It is stated that the petitioners received notice under Order 21 Rule 66 of the Code of Civil Procedure in the execution petition and on subsequent enquiry, they came to know that they were not properly represented before the court and no written statement was filed and hence they were set ex-parte.
3.The respondents/plaintiffs contended that the defendants were secretly watching the case proceedings and that in spite of ample opportunities, they have deliberately omitted to file the written statement. It is also contended that Adv.K.K.Sethukumar never appeared for the defendants and the application is filed only to drag the execution proceedings.
4. In the trial court the defendants/appellants were represented by Power of Attorney holder, Antony T.M. But, in the Appeal Memorandum, the appellants are represented by their Power of Attorney holder, Jinu John. In the Appeal Memorandum, the appellants reiterated the grounds stated in the petition to condone the delay. It is stated that Adv. K.K.
Sethukumar was conducting their case in the trial court. After filing the appeal, the appellants filed I.A. No. 4 of 2024 through Power of Attorney holder, Sri. Jinu John for accepting additional grounds for appeal. In the affidavit in support of the said petition, it is stated that incorrect contentions are taken as grounds in the Memorandum of Appeal and that the appellants came to know about the actual facts only subsequently. It is stated that the old Power of Attorney holder of the appellants made a cooked up story against Adv.K.K.Sethukumar. It is stated that the old Power of Attorney holder of the appellants originally entrusted the matter to Adv.Anoop and the said counsel entrusted the matter to Adv.T.V.Vishnu Namboodiri and Adv.Alice Itty. It is also stated that when the original suit was filed, the first appellant was having the problem of mental depression and because of the contingencies that happened in the family of the appellants and for want of proper instructions, their Advocates were not in a position to conduct the case properly.
5.Heard the learned counsel on both sides and perused the records.
6.The points for determination are the following :
1.Whether the appellants established sufficient cause to condone the delay of 1059 days ?
2.Whether the impugned order is legally sustainable ?
7. Point Nos.1 and 2 : It is pertinent to note that the case set up by the appellants herein before the trial court to condone the delay was the negligence and irresponsibility on the part of Adv.K.K.Sethukumar to whom their Power of Attorney has entrusted the case. The impugned order shows that an affidavit of Adv.K.K.Sethukumar was filed from the side of the respondents to show that the said Advocate was never engaged in the matter and no vakkalath was filed by the said Advocate for the petitioners. As noticed earlier, in the original Appeal Memorandum filed, the appellants reiterated the contention that they entrusted the matter to Adv.K.K.Sethukumar and that the said counsel was conducting the case on behalf of the appell
