C.G.VARGHESE v. ALIAS THOMAS

BY ADVS.SRI.SRI.M.K.DILEEPAN SRI.DEEPAK T.NEDUNGADAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON

08.04.2025, ALONG WITH OP(C).197/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C)Nos.197 & 201 of 2019 3 “C.R.” JUDGMENT These Original Petitions are disposed of by way of a common judgment as the questions involved are the same. The original petitions arise from O.S.No.190 of 2006 on the file of the Subordinate Judge’s Court, Mavelikkara. The petitioner is the plaintiff in the suit, and the respondent is the defendant.

2. The Original Suit was filed for specific performance of a contract. The defendant, along with the written statement, had filed a counter claim. The suit was listed for trial on 6.11.2011. On the day scheduled for trial the plaintiff did not appear. Therefore, the Court dismissed the suit for default and adjourned the case to 30.11.2011 to consider the counterclaim. On that day, the defendant did not appear. The Court decreed the counterclaim.

3. The plaintiff filed I.A.No.1108 of 2014 under Order 9 Rule 9 of the Code of Civil Procedure (CPC), for setting aside the dismissal of the suit along with I.A.No.1109 of 2014 for condonation of the delay of O.P.(C)Nos.197 & 201 of 2019 4 1221 days in filing the application. He also filed I.A.No.1103/2014 under Order 9 Rule 13 to set aside the ex parte decree in the counter claim along with I.A.No.1104 of 2014 to condone the delay of 974 days in filing the petition. The trial Court dismissed the applications. The plaintiff challenged the orders passed by the trial Court by filing CMA.Nos.74/2017 & 4/2018 before the Additional District Court-I, Mavelikkara, which confirmed the orders passed by the trial Court. These orders are under challenge in these original petitions.

4. The common pleading set up by the plaintiff is that the plaintiff was undergoing treatment for heart complaints. He had to undergo a bypass surgery. Therefore, he failed to contact his counsel and give necessary instructions. The non-appearance of the plaintiff before the Court on the day scheduled for trial of the case was not due to his willful laches or negligence. The plaintiff has serious contentions in the original suit as well as in the counter claim.

5. The defendant resisted the applications, contending as follows:- The averment of the plaintiff that he was undergoing treatment O.P.(C)Nos.197 & 201 of 2019 5 for cardiac complaint is false. Defendant No.1 died before the disposal of the case, and hence, the suit against him had already been abated. After the dismissal of the suit and passing of the ex parte decree in the counterclaim, the defendant filed an execution petition to execute the decree. Notice was served on the plaintiff on the execution petition. After getting notice of the execution petition, the plaintiff appeared in the execution petition through a lawyer. Subsequently, on 17.9.2012, the Court set him ex parte and passed an order for delivery of the property. The Amin reached the property on 30.5.2014 to effect the delivery. The defendant obtained possession of the property on

30.05.2014 itself. The present applications had been filed three months after the date of delivery of the property. The plaintiff did not undergo bypass surgery as pleaded. He was fully aware of the decree passed against him and the dismissal of the suit.

6. The plaintiff gave evidence as PW1. Exts.A1 to A3 were marked on his side. The trial Court held that the plaintiff failed to prove Exts.A1 to A3 medical prescriptions and adduce any evidence to suggest that he had undergone bypass surgery in 2011. Consequently, the trial O.P.(C)Nos.197 & 201 of 2019 6 Court held that the plaintiff failed to establish sufficient cause for condoning the delay. Yet another observation of the trial Court is that the plaintiff had not even taken steps to implead the legal representatives of the deceased on record within the time prescribed. The trial Court had taken note of the fact that the plaintiff had filed vakalath before the execution court in E.P.No.119/2012, and he was present at the time when the Amin effected delivery of the property. The trial Court further observed that the plaintiff received notice in the petition seeking delivery in 2012. But, he did not take steps to set aside the ex parte decree in the counter-claim till 2014.

7. The District Court confirmed the findings of the trial Court, holding that there is deliberate laches and inaction on the part of the plaintiff.

8. I have heard the learned counsel for the petitioner and the learned counsel for the respondent.

9. The following facts are not in dispute: The suit was scheduled for trial on 6.11.2011. The plaintiff did not appear before the Court. The suit was adjourned to 30.11.2011 for O.P.(C)Nos.197 & 201 of 2019 7 considering the counterclaim. On that day also the plaintiff did not appear. The plaintiff received notice regarding the petition for delivery of the property in the execution petition in 2012. The delivery was effected in the presence of the plaintiff. He filed the applications seeking to set aside the order of dismissal of the suit and the ex parte decree in the counter claim in 2014.

10. The questions that arise for consideration are; (1) Whether the plaintiff had established sufficient cause for not preferring the application to set aside the ex parte decree and the application to restore the Original Suit within the statutory period. (2) If sufficient cause is shown, has the plaintiff established the grounds for establishing the discretion in condoning the delay ?

11. It is profitable to extract Section 5 of the Limitation Act,

1963. “5. Extension of prescribed period in certain cases.— Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. O.P.(C)Nos.197 & 201 of 2019 8 Explanation.—The fact that the appellant or the applicant was missed by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.” The expression “sufficient cause” contained in Section 5 of the Limitation Act is elastic enough to yield different results depending upon the circumstances of the case. The criteria to be applied in condoning the delay in different claims may be different. For example, in the case of beneficial legislations a liberal interpretation must be given to the expression “sufficient cause” to serve its object. The concept of reasonableness demands that the courts, while taking a liberal approach, must also consider the rights and obligations of both the parties. When a right has accrued in favour of one party due to gross negligence of the other, the Court shall refrain from exercising the discretionary relief. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the Statute mandates so. The Court has no power to extend the period of limitation on equitable grounds. O.P.(C)Nos.197 & 201 of 2019 9

12. The statute of limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale. (Vide: Basawaraj and Another v. Special Land Acquisition Officcer [(2013) 14 SCC 81])

13. In Halsbury's Laws of England (Fourth Edition, Vol. 28, p. 407) the learned author comments thus: “805. Policy of the Limitation Acts.—The courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence.”

14. An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches. (See Popat and Kotecha Property v. SBI Staff Assn. [(2005) 7 SCC 510], Rajender Singh v. Santa Singh O.P.(C)Nos.197 & 201 of 2019 10