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2025 Supreme(Online)(Ker) 28406
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SATHISH NINAN, SHOBA ANNAMMA EAPEN, JJ
M.K VINEESH – Appellant
Versus
RAJALAKSHMI.T.R – Respondent
FAO NO. 149 OF 2024
For the Appellants/Petitioners: ZAKEER HUSSAIN K.A., SANJEETHA
For the Respondents: T.P.SAJID, SHIFA LATHEEF, MUHAMMED HAROON A.N., HASHARURAHIMAN U., MOHEMED FAVAS
The court balanced the principles of delay condonation with the necessity to uphold justice and provide a last opportunity to contest a decree.
Headnote:This appeal arises from the dismissal of applications to set aside an ex parte decree under the Code of Civil Procedure, 1908. The appellant claims illness prevented attendance, resulting in a 51-day delay to appeal. The respondent contests this claim. The court ruled the delay not prejudicial; thus, the appeal was allowed under conditions including payment of costs. The final order mandates security for the decree amount.
| Table of Content |
|---|
| 1. overview of appeal and initial case details. (Para 1 , 2) |
| 2. contestation of delay explanation provided by the appellant. (Para 3) |
| 3. court's observations and the rationale behind delay considerations. (Para 5 , 6) |
| 4. final decision to allow appeal with conditions. (Para 7) |
SHOBA ANNAMMA EAPEN, J.
This appeal is filed by the defendant in O.S.No.174 of 2019 on the file of the Additional Sub Court-II, Kozhikode. He filed RPIA No.54 of 2023 along with IA No.11 of 2023 seeking to set aside the ex-parte decree in the suit and to condone the delay of 51 days in filing the RPIA No.54 of 2023. The Sub Court dismissed the applications by a common order dated 13.11.2024. Challenging the above common order, the appellant has preferred this appeal under Section 104 read with Order XLIII, Rule 1(d) of the Code of Civil Procedure , 1908.
2. The suit is for realisation of money. The appellant is the defendant and the respondent is the plaintiff in the suit. The case of the appellant is that on 07.07.2023, when the case was listed for trial, the appellant could not appear due to illness. Hence, the suit was decreed ex parte. Thereafter, the appellant filed a petition to set aside the ex parte decree passed against him. But, due to some defect in the cause title, the petition was returned with a direction to re-present the same within 7 days after curing the defect. The petition was taken back by the advocate clerk, but it was misplaced due to the shifting of the advocate office. Thus, there occurred a delay of 51 days in filing the RPIA No.54 of 2023. Hence, I.A.No.11 of 2023 was filed to condone the said delay. There was no laches or negligence on the part of the appellant in not appearing on 07.07.2023 and also in causing the delay in filing the petition to set aside the ex parte decree.
3. The respondent/plaintiff refuted the reasons stated and it was contended that, earlier, on 10.02.2022 also, an ex parte decree was passed against the appellant and it was set aside as per the order in RPIA No.29 of 2022. The intention of the appellant is only to protract the matter by not allowing the respondent/plaintiff to enjoy the fruits of the decree. Further, it was contended that the reason cited for non appearance on 07.07.2023 is unsupported by documents and the explanation for the delay in filing the RPIA is not satisfactory.
4. We have heard the learned counsel appearing on both sides.
5. The suit was decreed ex parte on 13.07.2023. The reason stated for non-appearance is that the appellant was suffering from H1N1, though not supported by documents. On an earlier occasion also, the suit was decreed ex parte, which was set aside on 15.02.2023. From the impugned order, it is seen that when the matter was posted for trial on 07.07.2023, the appellant was not present and the case was posted to 10.07.23 on which date the counsel reported no instructions. Thus, the suit was decreed ex parte.
6. Of course, the reasons stated for being ex parte and for the delay in filing the RPIA are not satisfactorily explained. In Esha Bhattacharjee v. Raghunathpur Nafar Academy [ (2013) 12 SCC 649 ], the apex court, while summarizing 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 a strict approach, whereas the second calls for a liberal delineation.
7. The delay in this case is 31 days. On an appraisal of the facts of this case, which are mentioned above, we are of the view that one more opportunity can be granted to the appellant as a last chance, to contest the case on merits and get a decision on merits. Of
