IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY THE 6TH MARCH, 2008/16TH CHAITHRA 1930 FAO.No. 4 of 2008() ------------------- (O.S. NO. 31/1995 OF THE SUBORDINATE JUDGE'S COURT, KOYILANDY) APPELLANT/PETITIONER/DEFENDANT ----------------------------------------------- PUNIYASSERY GOPALAKRISHNA KURUP, IRINGATH AMSOM DESOM, KOYILANDY TALUK. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENTS: RESPONDENTS/PLAINTIFFS ----------------------------------- 1. MANGALASSERY ANTONY (DIED), MARUTHANKARA AMSOM DESOM, VADAKARA TALUK, AND HIS CHILDREN AND LEGAL HEIRS ARE: 2. MOSI ANTO, MARUTHANKARA AMSOM DESOM, VADAKARA TALUK. 3. SANTHOSH ANTO, MARUTHANKARA AMSOM DESOM, VADAKARA TALUK. 4. SEMILY ANTO, MARUTHANKARA AMSOM DESOM, VADAKARA TALUK. 5. SEMAYIL ANTO, MARUTHANKARA AMSOM DESOM, VADAKARA TALUK. 6. SUNIL ANTO, MARUTHANKARA AMSOM DESOM, VADAKARA TALUK. 7. SWAPNA ANTO, MARUTHANKARA AMSOM DESOM, VADAKARA TALUK. 8. SMITHA AUGUSTINE, CROSSING COMPUTER, SHOP NO.59, ALKHALHA STREET, MANAMA, BAHRAIN. BY ADV. SRI.R.K.MURALEEDHARAN THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 25-2-2008, THE COURT 06/03/2008, DELIVERED THE FOLLOWING: P.R.RAMAN & V.K.MOHANAN,JJ. ---------------------------------------------- F.A.O.No.4 of 2008 ---------------------------------------------- Dated 6th March, 2008. JUDGMENT Mohanan, J. The defendant in O.S. 31/1995 on the file of the Subordinate Judge's Court, Koyilandy is the appellant herein. Aggrieved by a common order dated 15-12-2007 in I.A.Nos.668/2007 and 669/2007 in the above suit, by which the delay condonation petition as well as the petition to set aside the ex parte decree dated 8-12-1995 in the above suit were dismissed, the appellant preferred this appeal. The suit was for specific performance of an agreement dated 7-3-94. According to the above agreement, the appellant herein had agreed to sell plaint B schedule property and at the time of execution of the agreement, Rs.1,25,000/- was paid to the appellant and balance consideration of Rs.25,000/- was to be paid on or before 30.8.1994. According to the plaintiff though the balance amount was ready, the appellant was not ready to execute the FAO 4/2008 -:2:- sale deed and therefore after sending the lawyer notice, O.S.No.31/95 was filed by the plaintiff for specific performance of the above agreement or in the alternative for the return of the advance amount with interest. 2. It is the above suit decreed ex parte on 8-12-1995 by which the appellant herein is directed to execute the assignment deed conveying one half share of the property covered under Annexure 2 document within two months from the date of the decree on receiving Rs.25,000/- as balance consideration and in default to execute the same by the appellant/defendant. It is declared that the plaintiff is entitled to get the document executed through the court. As the document was not executed as decreed, E.P.13/2004 was filed before the court of Subordinate Judge, Koyilandy with a prayer to execute the sale deed through the court. In the above execution petition, the appellant, who is the judgment debtor therein, filed counter affidavit raising various contentions. However, the Execution Court as per its order dated 15-11-2006, allowed the Execution Petition. FAO 4/2008 -:3:- 3. According to the appellant, in the meanwhile, he had preferred three interlocutory applications namely, I.A.668/2007, 669/2007 and 948/2007, among which the first one was for condonation of delay in preferring the 2nd petition to set aside the ex parte decree and the 3rd petition was to permit to take substituted service to the 8th respondent. It is the further case of the appellant that in the 3rd petition, i.e., I.A.948/2007, bata was remitted for taking steps for substituted service and publication was also taken out in newspaper and, according to the appellant, on the subsequent adjourned date the matter was posted for taking steps on 23-8-2007 for the reason that the Ameen had made a report that his attempt to effect substituted service by affixing notice on the house of the plaintiff had been obstructed. Thus, according to the appellant, the matter was again adjourned for further steps on 13-9-2007 but for want of steps, the court below has dismissed I.A.948/2007. According to the appellant, there was no laches in taking steps but the appellant and his counsel were under bona fide impression that since process fee was already FAO 4/2008 -:4:- remitted and notification published in newspaper and a copy of the same produced before the court below on 9-8-2007, no further step was necessary and therefore the appellant and his counsel failed to take note of the proceedings of the court. Consequent to the disposal of IA 948/2007, the court below has dismissed IA 668/2007 for condonation of delay and 669/2007 to set aside the ex parte decree. It is also averred that subsequently, the appellant had filed 3 other inter interlocutory applications praying to restore all the above three interlocutory applications. It is the further case of the appellant that highlighting the above aspects the appellant had filed E.A.312/2007 in E.P.13/2004 praying that pending adjudication of the above three interlocutory applications, the execution proceedings in E.P.13/2004 be stayed which was dismissed by the court below against which the appellant had approached this Court by filing CRP 875/2007 and by order dated 4-10-2007, the CRP was disposed of directing the court below to defer the execution for a period of 2 months and, in the meanwhile, the court below, where the above 3 I.As were pending, was FAO 4/2008 -:5:- directed to dispose of the said applications within time frame of 6 weeks. 4. In the above appeal, it is averred that IA 668/2007 was filed for condonation of delay of 1473 days in filing the petition to set aside the ex parte decree and in the affidavit in support of the petition for delay condonation, the appellant had taken the contentions that the decree dated 8-12-95 was an ex parte one and only on getting the certified copy of the above judgment and decree, the appellant came to know that the decree was an ex parte one and, therefore, as advised by the senior counsel, the above two petitions were preferred. In those applications, respondents 2, 3 and 5 have filed joint counter affidavits stating that the appellant herein had preferred I.A.687/97 before the court below and the same was disposed of on merit and therefore the subsequent applications for condonation of delay to set aside the ex parte decree are not maintainable. It is also stated in the counter affidavit that the decree was passed 12 years back and no sufficient reasons are given to condone the delay. It is also the case of the FAO 4/2008 -:6:- respondents therein that the appellant had entered appearance through counsel in E.P.13/2004 in 2004 itself, and several affidavits were filed in the above E.P. and thus according to the respondents, no reason is given to explain the delay for filing the present belated application. 5. The appellant submitted that the order of the court below is unsustainable as it is against law and the evidence on record. According to the appellant, the order of the court below is highly arbitrary, especially, in the particular factual background of the case that the property in question is ordered to be given to the respondents for a paltry amount. It is also the case of the appellant that by ordering the return of the amount which received towards advance, justice can be rendered to the decree holder. It is also the contention of the appellant that the dismissal of earlier petition 687/97 is not a bar for filing the subsequent applications for condonation of delay and setting aside the ex parte decree. According to the appellant, he shall be given an opportunity to contest the matter and to have an order on merit. According to the appellant, the court below FAO 4/2008 -:7:- ought to have taken a liberal approach in the matter of condonation of delay and the attempt must be always for the settlement of the issue on merit. Thus According to the appellant, the order of the court below is absolutely illegal, perverse and unsustainable. 6. Denying almost all the averments and contentions raised by the appellant in the above F.A.O, a common counter affidavit has been filed by the respondents 1 to 7. The material averments in the counter affidavit are as follows: The agreement for sale was entered into between the father of the respondents 1 to 7 and the appellant as early as on 7.3.1994 for a consideration of Rs.1,50,000/- and Rs.1,25,000/- was paid at the time of execution of the agreement. The balance consideration of Rs.25,000/- had to be paid on or before 30-8-1994 and though the father of the respondents was ready with the balance consideration, the appellant refused to execute the sale deed as a result of which a lawyer notice was caused to send and thereafter O.S.31/95 was filed for specific performance. In the suit, the court below has granted FAO 4/2008 -:8:- injunction restraining the appellant from transferring the property as per the order in I.A.586/95 dated 30-5-95. According to the respondents, though the appellant entered appearance through counsel, no written statement was filed as a result of which the suit was decreed as ex parte on 8-12-95. Annexure R4(a) is the copy of the judgment. Thereafter the balance consideration of Rs.25,000/- was deposited and draft sale deed was also produced in E.P.136/96 filed for the execution of the above decree. It is the specific case of the respondents that during the pendency of the above execution petition, the appellant had preferred I.A.684/97, true copy of the same is produced as Annexure R4(b) which was filed as early as on 22-7-97 wherein the prayer was for setting aside the ex parte order dated 5-12-95. According to the respondents, a counter affidavit was filed in the above I.A. and subsequently, that application was dismissed and that dismissal order became final. It is stated by the respondents that since their father fell ill with a chronic disease and due to his absence, that execution petition, i.e., E.P.136/96 was dismissed and FAO 4/2008 -:9:- accordingly fresh petition i.e. E.P.13/2004 was filed by the respondents in which the appellant had filed Annexure 4(c) counter affidavit on 27-7-2004 in which he took a contention that the plaint schedule property was sold in court auction in O.S.77/97. It is further averred in the counter affidavit that the appellant managed to file another suit O.S.85/2006 at the instance of his wife as plaintiff wherein the appellant and his father were impleaded as defendants. According to the respondents, I.A.668/2007, a copy of which is produced along with counter affidavit as Annexure R4(e) for setting aside the ex parte decree dated 8-12-95 and the same is highly belated. There was an enormous delay of 12 years. They have filed counter affidavit in the court below and after examining the appellant as PW-1, the court below has rightly dismissed I.A.Nos.668/2007 and 669/2007 and therefore there is no merit in the present appeal which is only to be dismissed. 7. We have heard the counsel appearing for the parties and perused the impugned order as well as other materials available on record. FAO 4/2008 -:10:- 8. The learned counsel for the appellant submitted that though the petitions were filed belatedly, an opportunity may be given to the appellant to contest the matter and to have a disposal on merit. It is also pointed out by the counsel that the large extent of property being taken by the respondents for a paltry amount and if an opportunity is given to the appellant, the same could have been substantiated through a full fledged trial. The counsel further submitted that in the light of the settled position of law, the court has to take a liberal attitude in the matter of condonation of delay otherwise, it will amount to gross injustice to the appellant. On the other hand, the counsel for the respondents strongly submitted that the appellant deserves no leniency. According to the counsel, the appellant had suppressed the fact that he had already approached the court below by filing I.A.684/97 to set aside the ex parte order dated 5-12-95 and by the dismissal of I.A.684/97, the matter became more worse and the delay has also not been explained. It is further submitted that the order of dismissal of I.A.684/97, the matter became final and therefore subsequent petitions FAO 4/2008 -:11:- namely I.A 668 and 669/2007 are not maintainable. It is pointed out by the counsel for the respondent that the agreement was dated 7-3-94 and the father of the respondents paid a sum of Rs.1,25,000/- on 7-3-94 itself and further, a sum of Rs.25,000/- was deposited at the time of filing E.P.136/96 and even now, respondents are not able to enjoy the decree because of the adamant and litigious approach of the appellant on whose part there is sheer negligence and laches. 9. It is borne out from the records that the ex parte decree was passed on 8-12-95 for specific performance of contract entered into as early as on 7-3-94 and the respondents had already parted with an amount of Rs.1,25,000/- at the time of execution of the agreement and subsequently, a sum of Rs.25,000/- at the time of filing E.P.136/96. Even according to the appellant, there is a delay of 1473 days in filing the petition to set aside the ex parte decree. But no cogent explanation is forthcoming to condone the above delay and that the delay has not been satisfactorily proved. The lame excuse offered by the appellant are not sufficient to condone the delay, especially, in FAO 4/2008 -:12:- the background of the particular facts and circumstances involved in the case. It is pertinent to note that the appellant once approached the court below by filing I.A.684/97 for setting aside the ex parte order dated 5-12-95 and the same was dismissed and thus that order became final. If the dismissal of the above I.A is considered, the appellant's case will become more worse. Thus we are of the opinion that the appellant had miserably failed to explain the delay occurred in filing the petition to set aside the ex parte decree. We cannot ignore the fact that the appellant had already approached the court below by filing I.A.684/97 for setting aside the ex pare order dated 5-12-95 and the same was dismissed and that dismissal order became final and, as long as the above order continues, the subsequent petition, normally, and especially in the facts and circumstances of the case, cannot be entertained. Thus for that reason also I.A.668/2007 is liable to be dismissed. 10. We have anxiously considered the fervent plea of the counsel for the appellant for leniency and liberal approach in the matter of condonation of delay. It is trite position of law that FAO 4/2008 -:13:- in the matter of condonation of delay, a liberal approach has to be adopted. The above position is not universally applicable and in every case, the delay need not be condoned unless the same is properly explained and the explanation should be cogent and satisfactory in the particular facts and circumstances involved in the case. It is a case where the suit was for specific performance on the basis of the agreement dated 7-3-94 on which date, substantial amount of Rs.1,25,000/- was paid to the appellant and the remaining balance consideration was only Rs.25,000/- which was also deposited during the year 1996 while filing E.P.136/96. Therefore it can be seen that an amount of Rs.1,25,000/- was in the hands of the appellant and he was enjoying that amount. As far as the respondents are concerned, they have parted with Rs.1,25,000/- on 7-3-1994 and a further sum of Rs.25,000/- during the year 1996 and still the respondents are denied the fruit of the decree. The entire delay was occurred due to the laches and negligence on the part of the appellant. The respondents could not enjoy the benefit of this decree which was passed as early as on 8-12-95 FAO 4/2008 -:14:- and because of the continued litigation at the instance of the appellant, still the respondents are not getting the benefit of the decree. In view of this particular facts and circumstances of the case, we are not able to extend leniency and liberal approach in favour of the appellant as he does not deserve the same. In the result, we are of the opinion that there is no merit in the appeal. Accordingly, the above F.A.O. is dismissed. P.R.RAMAN, JUDGE. V.K.MOHANAN, JUDGE. kvm/- FAO 4/2008 -:15:- P.R.RAMAN & V.K.MOHANAN, JJ. F.A.O. No.4/2008 Judgment Dated:6-3-2008. FAO 4/2008 -:16:-