1. Suit for recovery of gold ornaments and maintenance under Section 26, Family Courts Act — Ex parte decree — Application to set aside decree under Order IX Rule 13, CPC. (Para 5 , 6 , 7 )
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2018 Supreme(SC) 222
SUPREME COURT OF INDIA
R.K. AGRAWAL, ABHAY MANOHAR SAPRE, JJ.
Ummer – Appellant
Versus
Pottengal Subida & Ors. – Respondents
CIVIL APPEAL NOs. 2599-2600 OF 2018 [Arising out of SLP (C) Nos.10315-10316 of 2017]
Decided On : 08-03-2018
IMPORTANT POINT
High Court ought to take a liberal view in matters of condonation of delay.
Headnote:Limitation Act, 1963 – Section 5 – Condonation of delay – Appellant an old man in his late sixties – He did suffer heart disease during the relevant period and later he was down with dengue fever – Producing medical documents – Held, high Court ought to take a liberal view in the matter and condoned the delay – Delay of 554 days condoned with cost. (Para 15, 17)
Facts of the case:
Respondent No. 1 is the wife of respondent No.6 and daughter-in-law of the appellant herein whereas respondent Nos. 2 to 5 are the children born out of the wedlock of respondent Nos. 1 and 6.
Respondent No. 1 filed a suit against the appellant and respondent No. 6 in the Family Court for realization of the gold ornaments or in the alternative its value, which was alleged to have given by her parents to the appellant and respondent No. 6 in her marriage with respondent No. 6 and also for grant of maintenance under Section 26 of the Family Courts Act.
The Family Judge placed the appellant ex parte on 16.10.2014 because he failed to appear in the suit on that date. The Family Court then proceeded to pass ex parte decree against the appellant on the same day.
The appellant filed an application praying for setting aside of the ex parte decree along with the application for condonation of delay in filing the application.
The Family Judge dismissed the applications and declined to condone the delay.
The appellant filed Misc. Appeal before the High Court. Since the appeal was delayed by 554 days, the appellant filed an application praying therein for condonation of delay in filing the appeal.
The High Court dismissed the application for condonation of delay as well as the appeal.
Finding of the Court:
The delay ought to be condoned by the High Court.
Result: Appeal allowed, matter remitted to High Court.
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Table of Contents
2. Appellant sought condonation of delay in filing appeal based on prolonged illness; High Court held no sufficient cause was shown for the delay. (Para 9 , 10 , 14 )
3. Prolonged illness and hospitalization of an elderly person constitute sufficient cause for condoning delay, necessitating a liberal approach by the courts. (Para 15 , 16 , 17 )
4. The requirement for an appellant to explain the delay for every single day until the date of filing the appeal is no longer good law. (Para 18 )
5. Appeals allowed — Delay condoned subject to costs — Matter remanded to High Court for decision on merits. (Para 12 , 19 , 20 )
6. What constitutes sufficient cause for condonation of delay under Section 5 of the Limitation Act?
Prolonged illness, hospitalization, and mental distress, particularly in elderly persons, can be considered sufficient cause for condoning delay in filing an appeal, provided the facts are supported by medical documentation. (Para 14 , 15 , 17 )
7. Is an appellant required to explain the delay for every single day until the date of filing the appeal?
No, the legal proposition that an appellant must explain the delay for each day until the date of filing the appeal has been diluted by subsequent decisions and is no longer good law. (Para 18 )
8. How should courts approach applications for condonation of delay when genuine medical grounds are presented?
Courts should take a liberal view in such matters and condone the delay if the cause shown is sufficient within the meaning of Section 5 of the Limitation Act. (Para 17 , 19 )
JUDGMENT
Abhay Manohar Sapre, J.
1. Leave granted.
2. These appeals are directed against the final judgment and order dated 16.11.2016 passed by the High Court of Kerala at Ernakulam in Mat. Appeal No.653 of 2016 and C.M. Application No.1986 of 2016 in Mat. Appeal No.653 of 2016 whereby the High Court dismissed the application for condonation of delay as well as Matrimonial Appeal filed by the appellant herein and affirmed the order dated 16.10.2014 passed by the Family Court, Malappuram in O.P. No.1011 of 2011.
3. Facts of the case lie in a narrow compass and to appreciate the short point involved in these appeals, the facts, however, need mention hereinbelow.
4. Respondent No. 1 is the wife of respondent No.6 and daughter-in-law of the appellant herein whereas respondent Nos. 2 to 5 are the children born out of the wedlock of respondent Nos. 1 and 6.
5. Respondent No. 1 (wife/daughter in law) filed a suit being O.P. 1011 of 2011 against the appellant and respondent No. 6 in the Family Court, Malappuram for realization of the gold ornaments or in the alternative its value, which was alleged to have given by her parents to the appellant and respondent No. 6 in her marriage with respondent No. 6 and also for grant of maintenance under Section 26 of the Family Courts Act.
6. This suit was being contested by the appellant as one of the defendants along with respondent No. 6 before the Family Court. However, the Family Judge placed the appellant ex parte on 16.10.2014 because he failed to appear in the suit on that date. The Family Court then proceeded to pass ex parte decree against the appellant on the same day.
7. The appellant then filed an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”) and prayed for setting aside of the ex parte decree along with the application for condonation of delay in filing the application.
8. By order dated 04.03.2016, the Family Judge dismissed the applications and declined to condone the delay. As a consequence thereof, the application filed under Order IX Rule 13 of the Code was also dismissed without going into its merit.
9. The appellant felt aggrieved by the order dated 16.10.2014 and filed Misc. Appeal (No.653/2016) before the High Court. Since the appeal was delayed by 554 days, the appellant filed an application under Section 5 of the Limitation Act praying therein for condonation of delay in filing the appeal.
10. By impugned order, the High Court dismissed the application for condonation of delay as well as the appeal. In the opinion of the High Court, the appellant failed to make out any sufficient cause for condoning the delay in filing appeal and hence the application seeking condonation of delay of 554 days in filing the appeal was not liable to be condoned. As a result, the appeal was dismissed as barred by limitation, which has given rise to filing of these appeals by way of special leave by defendant No. 1– father-in-law in this Court.
11. Heard learned counsel for the parties.
12. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals, set aside the impugned order, condone the delay in filing appeal before the High Court and remand the case to the High Court for deciding the appeal filed by the appellant on merits.
13. We have perused the contents of the application and the affidavit filed by the appellant before the High Court seeking condonation of delay in filing the appeal.
14. The cause pleaded by the appellant therein was relating to his prolonged illness during the period in question. The appellant also filed medical documents to support the factum of his illness during the relevant time.
15. It is not in dispute that the appellant is an old man and in his late sixties. It is also not in dispute that he did suffer heart disease during the relevant period and later he was down with dengue fever. It is also not in dispute that he was hospital
