UMMER versus POTTENGAL SUBIDA & ORS.

[2018] 3 S.C.R.

UMMER

POTTENGAL SUBIDA & ORS.

(Civil Appeal Nos. 2599-2600 of 2018)

MARCH 08, 2018

[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]

Limitation Act, 1963 – s.5– “Sufficient cause” –Ex-partedecree passed against the appellant – Application filed by appellantfor setting aside the same along with application for condonationCof delay in filing the application, dismissed– Appeal filed byappellant before High Court along with application u/s.5 prayingfor condonation of delay of 554 days in filing the said appeal–High Court dismissed the appeal as well as the application forcondonation of delay– On appeal, held: It is not disputed thatDappellant is an old man and that he suffered heart disease duringthe relevant period and was later down with dengue fever– It isfurther not disputed that he was also mentally disturbed due todisputes going on in his family – Cause shown by appellant, forcondoning the delay in filing the appeal before High Court, relatingto his prolonged illness during the period in question was sufficientEcause within the meaning of s.5– High Court should have takenliberal view in the matter and condoned the delay in filing theappeal– Delay of 554 days in filing the appeal before High Courtis condoned, subject to costs of Rs.10,000/- – Code of CivilProcedure, 1908– Or. IX, r.13– Costs.

Allowing the appeals, the Court

HELD: 1.1 The cause pleaded by the appellant related tohis prolonged illness during the period in question. The appellantalso filed medical documents to support the factum of his illnessduring the relevant time. It is not in dispute that the appellant isGan old man and in his late sixties. It is also not in dispute that hedid suffer heart disease during the relevant period and later hewas down with dengue fever. It is also not in dispute that he washospitalized to get medical treatment for these two ailments for along time during that period. It is also not in dispute that he wasHmentally disturbed due to disputes going on in his family and was

not able to attend to his day-to-day duties due to his old age andprolonged ailments. [Paras 14, 15] [599-F-G]

1.2 The High Court did not dispute the genuineness of thesefacts and nor disputed the genuineness of the documents filed bythe appellant in support of the cause pleaded. On the other hand,the High Court found as fact that the appellant did suffer theseailments. In the light of the aforementioned undisputed facts, theHigh Court should have taken liberal view in the matter and heldthe cause shown by the appellant as “sufficient cause” within themeaning of Section 5 of the Limitation Act, 1963 and accordinglyshould have condoned the delay in filing the appeal. One cannotnow dispute the legal proposition that the earlier view of thisCourt that the appellant was required to explain the delay of eachday till the date of filing the appeal has since been diluted by thelater decisions of this Court and is, therefore, held as no longergood law. [Paras 16-18] [599-H; 600-A-C]

1.3 Having regard to the totality of the facts andcircumstances of the case and the cause shown by the appellant,which is duly proved by the documents, the cause shown by theappellant for condoning the delay in filing the appeal before theHigh Court was/is sufficient cause within the meaning of Section5 of the Limitation Act and, therefore, the application filed by theappellant for condonation of delay of 554 days in filing the appealdeserves to be condoned, subject to the appellant paying cost ofRs.10,000/- to respondent No. 1. The appeal is held to havebeen filed within limitation. It is accordingly restored to its originalnumber. [Paras 19, 20] [600-D-F]

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2599-2600 of 2018.

From the Judgment and Order dated 16.11.2016 of the High Courtof Kerala at Ernakulam in Mat. Appeal No. 653 of 2016 and C.M. Appl.No.1986 of 2016 in Mat. Appeal No. 653 of 2016 respectively.

Deepak Prakash, Bineesh K., Subhash Choudhary, Ms. Athira G.Nair, Ranvee Dahiya, Nachiketa Vajpayee, Ms. Sree Devi, P. V.Dinesh, Advs. for the Appellant.

Sriram P, Vishnu Sankar, Advs. for the Respondents.

AThe Judgment of the Court was delivered by

ABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. These appeals are directed against the final judgment and orderdated 16.11.2016 passed by the High Court of Kerala at Ernakulam inMat. Appeal No.653 of 2016 and C.M. Application No.1986 of 2016 inBMat. Appeal No.653 of 2016 whereby the High Court dismissed theapplication for condonation of delay as well as Matrimonial Appeal filedby the appellant herein and affirmed the order dated 16.10.2014 passedby the Family Court, Malappuram in O.P. No.1011 of 2011.

3. Facts of the case lie in narrow compass and to appreciate theCshort point involved in these appeals, the facts, however, need mentionhereinbelow.

4. Respondent No. 1 is the wife of respondent No.6 anddaughter-in-law of the appellant herein whereas respondent Nos. 2 to 5are the children born out of the wedlock of respondent Nos. 1 and 6.D

5. Respondent No. 1 (wife/daughter in law) filed suit being O.P.1011 of 2011 against the appellant and respondent No. 6 in the FamilyCourt, Malappuram for realization of the gold ornaments or in thealternative its value, which was alleged to have given by her parents tothe appellant and respondent No. 6 in her marriage with respondent No.E6 and also for grant of maintenance under Section 26 of the FamilyCourts Act.

6. This suit was being contested by the appellant as one of thedefendants along with respondent No. 6 before the Family Court.However, the Family Judge placed the appellant ex parte on 16.10.2014Fbecause he failed to appear in the suit on that date. The Family Courtthen proceeded to pass ex parte decree against the appellant on thesame day.

7. The appellant then filed an application under Order IX Rule 13of the Code of Civil Procedure, 1908 (hereinafter referred to as “theGCode”) and prayed for setting aside of the ex parte decree along withthe application for condonation of delay in filing the application.

8. By order dated 04.03.2016, the Family Judge dismissed theapplications and declined to condone the delay. As consequence thereof,the application filed under Order IX Rule 13 of the Code was alsoHdismissed without going into its merit.

9. The appellant felt aggrieved by the order dated 16.10.2014 andfiled Misc. Appeal (No.653/2016) before the High Court. Since the appealwas delayed by 554 days, the appellant filed an application under Section5 of the Limitation Act praying therein for condonation of delay in filingthe appeal.

10. By impugned order, the High Court dismissed the applicationfor condonation of delay as well as the appeal. In the opinion of the HighCourt, the appellant failed to make out any sufficient cause for condoningthe delay in filing appeal and hence the application seeking condonationof delay of 554 days in filing the appeal was not liable to be condoned.As result, the appeal was dismissed as barred by limitation, which hasgiven rise to filing of these appeals by way of special leave by defendantNo. 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 perusalof the record of the case, we are inclined to allow the appeals, set asidethe impugned order, condone the delay in filing appeal before the HighCourt and remand the case to the High Court for deciding the appealfiled by the appellant on merits.

13. We have perused the contents of the application and theaffidavit filed by the appellant before the High Court seeking condonationof delay in filing the appeal.

14. The cause pleaded by the appellant therein was relating to hisprolonged illness during the period in question. The appellant also filedmedical documents to support the factum of his illness during the relevanttime.

15. It is not in dispute that the appellant is an old man and in hislate sixties. It is also not in dispute that he did suffer heart disease duringthe relevant period and later he was down with dengue fever. It is alsonot in dispute that he was hospitalized to get medical treatment for thesetwo ailments for long time during that period. It is also not in disputethat he was mentally disturbed due to disputes going on in his family andwas not able to attend to his day-to-day duties due to his old age andprolonged ailments.

16. It is an admitted fact that the High Court did not dispute thegenuineness of these facts and nor disputed the genuineness of the

Adocuments filed by the appellant in support of the cause pleaded. On theother hand, the High Court found as fact that the appellant did sufferthese ailments.

17. In the light of the aforementioned undisputed facts, in ouropinion, the High Court should have taken liberal view in the matter andBheld the cause shown by the appellant as “sufficient cause” within themeaning of Section 5 of the Limitation Act and accordingly should havecondoned the delay in filing the appeal.

18. One cannot now dispute the legal proposition that the earlierview of this Court that the appellant was required to explain the delay ofCeach day till the date of filing the appeal has since been diluted by thelater decisions of this Court and is, therefore, held as no longer good law.

19. In our considered opinion, having regard to the totality of thefacts and circumstances of the case and the cause shown by the appellant,which is duly proved by the documents, we are inclined to hold that theDcause shown by the appellant for condoning the delay in filing the appealbefore the High Court was/is sufficient cause within the meaning ofSection 5 of the Limitation Act and, therefore, the application filed bythe appellant for condonation of delay of 554 days in filing the appealdeserves to be condoned. It is accordingly condoned but it is subject tothe condition that the appellant shall pay cost of Rs.10,000/- to respondentENo. 1.

20. In view of the foregoing discussion, the appeals succeed andare accordingly allowed. Impugned order is set aside. The appeal (Misc.Appeal No.653/2016) is held to have been filed within limitation. It isaccordingly restored to its original number. The High Court will nowFdecide the appeal on merits expeditiously in accordance with law.

Divya Pandey

Appeals allowed.