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Thursday, March 8, 2018

sec.5 of the Limitation Act - delay of 554 days in filing the appeal - day to day furnishing reasons is not a good law - 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 hospitalized to get medical treatment for these two ailments for a long time during that period. It is also not in dispute that he was mentally disturbed due to disputes going on in his family and was not able to attend to his 6 day-to-day duties due to his old age and prolonged ailments. - One cannot now dispute the legal proposition that the earlier view of this Court that the appellant was required to explain the delay of each day till the date of filing the appeal has since been diluted by the later decisions of this Court and is, therefore, held as no longer good law.= In our considered opinion, having regard to the totality of the facts 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 the cause shown by the appellant for condoning the delay in filing the appeal before the High Court was/is a sufficient cause within the meaning of Section 5 of the Limitation Act and, therefore, the application filed by the appellant for condonation of delay of 554 days in filing the appeal deserves to be condoned. It is accordingly condoned but it is subject to the condition that the appellant shall pay cost of Rs.10,000/- to respondent No. 1.

 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 2599-2600 OF 2018
[Arising out of SLP (C) Nos.10315-10316 of 2017]
Ummer .. Appellant
Versus
Pottengal Subida & Ors. .. Respondents
J U D G M E N T
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
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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
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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
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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
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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
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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 hospitalized to get
medical treatment for these two ailments for a long
time during that period. It is also not in dispute that
he was mentally disturbed due to disputes going on
in his family and was not able to attend to his
6
day-to-day duties due to his old age and prolonged
ailments.
16. It is an admitted fact that the High Court did
not dispute the genuineness of these facts and nor
disputed the genuineness of the documents filed by
the appellant in support of the cause pleaded. On the
other hand, the High Court found as a fact that the
appellant did suffer these ailments.
17. In the light of the aforementioned undisputed
facts, in our opinion, the High Court should have
taken liberal view in the matter and held the cause
shown by the appellant as "sufficient cause" within
the meaning of Section 5 of the Limitation Act and
accordingly should have condoned the delay in filing
the appeal.
18. One cannot now dispute the legal proposition
that the earlier view of this Court that the appellant
7
was required to explain the delay of each day till the
date of filing the appeal has since been diluted by the
later decisions of this Court and is, therefore, held as
no longer good law.
19. In our considered opinion, having regard to the
totality of the facts 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 the cause shown by the appellant for condoning
the delay in filing the appeal before the High Court
was/is a sufficient cause within the meaning of
Section 5 of the Limitation Act and, therefore, the
application filed by the appellant for condonation of
delay of 554 days in filing the appeal deserves to be
condoned. It is accordingly condoned but it is subject
to the condition that the appellant shall pay cost of
Rs.10,000/- to respondent No. 1.
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20. In view of the foregoing discussion, the appeals
succeed and are accordingly allowed. Impugned order
is set aside. The appeal (Misc. Appeal No.653/2016)
is held to have been filed within limitation. It is
accordingly restored to its original number. The High
Court will now decide the appeal on merits
expeditiously in accordance with law.
………………………………..J
(R.K. AGRAWAL)
 ..………………………………J.
 (ABHAY MANOHAR SAPRE)
New Delhi,
March 08, 2018
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