Cardinal Padiyara Public School Manimala Bhagom vs John Paul

M.R.Anitha, J

This R.S.A. has been directed against the judgment and decree in A.S. No.75/2021 on the file of Additional District Court-I, Kottayam, which in turn arise out of the judgment and decree in O.S. No.486/2010 on the file of Principal Sub Court, Kottayam.

The suit has been filed for declaration, realization of money, settlement of account, perpetual injunction as well as for mandatory injunction. It is alleged that plaintiff's father Sri.Paul J. Alunkal established Cardinal Padiyara Public School at Manimala on 25.01.2001. On 15.07.2003 the 2nd defendant gave 1.927 acres of property to the school as per a document. The infrastructure development of the school was done with the financial assistance and advice of the plaintiff's father, who had 41 years of service in A.K.J.M. School Kanjirappilly. He was the Principal of Cardinal Padiyara Public School till his death on 20.10.2008. On 10.04.2004 the plaintiff's father and the 2nd defendant executed an agreement stipulating that the plaintiff's father is entitled for 1/3rd share over the School and on his demise it would devolve on the plaintiff. So, from 10.04.2004 onwards plaintiff's father had 1/3rd share over the school and its properties.

It is further alleged that on 23.09.2008, the 2nd defendant got executed an agreement cheating the plaintiff's father that he would pay Rs.20 lakhs towards his right over the school. His father died on 20.10.2008. After the death of his father, the plaintiff received Rs.19,90,000/- on several occasions and Rs.10,000/- was already received by the father from the 2nd defendant. Thereafter, 2nd defendant never permitted the plaintiff to take part in the administration and management of the school and to share the income. The agreement dated 23.09.2008 will not take away the plaintiff's father’s 1/3rd share over the school and its properties. Plaintiff demanded the 2nd defendant to give share of income from the school, but with no result. Hence, the suit has been filed to declare that the plaintiff is entitled for 1/3rd share over the school. An amount of Rs.3 lakhs is claimed as 1/3 rd share of Rs.9 lakhs which is calculated as the income of the school from June 2009 admission period onwards till the date of suit. Mandatory injunction is also sought for directing to produce the accounts and other records of the Cardinal Padiyara Public School from June 2008 onwards to the plaintiff on his request on issuing 15 days notice. Perpetual injunction is further sought for restraining the defendants from convening any Managing Committee of Cardinal Padiyara Public School without giving prior notice to the plaintiff and informing him and further not to cause any obstruction to the plaintiff in examining records and day to day accounts. Further it has been sought to verify the accounts of Cardinal Padiyara Public School till date through a commissioner and to assess the 1/3rd share of the plaintiff and to allow the plaintiff to realise the same from the defendants 1 and 2.

The defendants filed written statement contending that the suit is not maintainable and plaintiff has no right to file such a suit. The suit is barred by limitation. The allegation that the plaintiff's father and 2nd defendant together started Cardinal Padiyara Public School on 25.01.2001 is stoutly denied. Plaintiff's father has no connection with the school and its properties. The suit has been filed without impleading the necessary parties and hence is not maintainable. The plaintiff's father has not spent any amount for the school. All the expenses for starting the school and for running school has been met by the 2nd defendant. Plaintiff or his father has no right to get 1/3rd share of the school. The 2nd defendant had not received any amount from the plaintiff's father. Plaintiff's father is not entitled to receive any amount either in the account of salary or share from the school. The agreement dated 10.04.2004 and 23.08.2008 are legally unsustainable. Those agreements were not executed by the defendants. If at all the plaintiff's father is entitled to receive any amount, it has already been received by him. The plaintiff has no connection with the school, he is not entitled to receive any amount as alleged. All the accounts of the school are being maintained truly and correctly. The plaintiff is not entitled to get any share of income. Hence, the defendants seeks to dismiss the suit.

Defendants subsequently remained absent and an ex-parte judgment was passed taking evidence of plaintiff and marking Ext.A1 to A11. Against which A.S. No.75/2021 was filed with I.A. No.1/2021 to condone the delay of 1171 days. The 1st Appellate Court dismissed the I.A. No.1/2021 and consequently the appeal also dismissed as barred by limitation.

Aggrieved by the same the defendants approached this Court in this R.S.A. Notice was issued to the respondent/plaintiff who appeared in person. Lower court records were called for and both sides were heard.

According to the learned counsel for the appellants, only son of the 2nd defendant died in an accident. The 1st defendant is a Trust and Trust has not been made a party and hence suit as filed is not maintainable. Suit is also barred by limitation. Hence, according to him, the impugned order and judgment is not sustainable.

The respondent/plaintiff on the other hand would contend that the appeal is devoid of any merit, both courts concurrently found against the defendants and hence there is no reason whatsoever to interfere with the findings made by the courts below.

A.S.  No.75/2021  has  been  filed  before  the  1st appellate court by the appellants/defendants with a petition I.A. No.1/2021 to condone the delay of 1117 days in filing the appeal. The 1st appellate court found that the defendants failed to offer sufficient reasons for condonation of delay and dismissed the petition to condone the delay and consequently the appeal has also dismissed. So from the above following substantial question of law is framed:

(i) Whether the dismissal of I.A. No.1/2021 in A.S. No.75/2021 by the Additional District Court-I, Kottayam, is against the settled principles of law?

In this case, admittedly an ex-parte decree and judgment has been passed against the defendants. Against which the defendants initially approached the trial court and filed petition to set aside the ex-parte decree with delay petitions and those petitions were dismissed for default. Thereafter, they filed I.A. No.599/2019 to review those orders and that also dismissed on 09.03.2022 stating about the pendency of A.S. No.75/2021.

The records also would go to show that originally the suit was dismissed by the trial court on 11.02.2017 for default. The affidavit in support of the petition to condone the delay filed before the 1st appellate court would show that the suit was restored to file and according to the 2nd defendant when he received the notice to restore the suit, he was in bereavement of the death of his only son aged 20 years on 26.12.2016. It has been specifically alleged in the affidavit that due to the untimely death of the only son he was mentally and physically upset and was not in a position to meet the advocate or gave the vakalath to file the appeal or to entrust the file with the advocate. Hence, all those factors has caused the delay.

The  2nd defendant’s  only  son  died  in  a  motor accident on 26.12.2016 is not seen disputed. The B diary of the trial court would go to show that the suit was dismissed for default on 22.09.2016 and subsequently, it was restored to file as per order dated 20.01.2017. Again, the suit was dismissed for default on 21.03.2017 and it was restored on 19.07.2017. Again, when the case was posted, the defendants failed to appear and again the suit was dismissed for default on 11.12.2017. Subsequently, the suit was restored to file as per order in I.A. No.2/2018.

On a mere glance through the proceedings of the trial court would itself reveal that though the suit was filed in the year 2007, on three occasions it was dismissed for default and thereafter restored to file and the ex-parte decree has been passed on 31.07.2018. It has also come out that in between, on 26.12.2016 the only son aged 20 years of the 2nd defendant died in a motor accident. So it is quite natural that he could not have been able to take follow up actions appropriately which might have resulted in dismissal of the petition filed by him to set aside the ex-parte decree on default. Subsequently, he filed a petition to review that order that also happened to be dismissed on 09.03.2022 for default due to the pendency of A.S. No.75/2021. On analyzing the above facts and circumstances, the reasons arrived at by the 1st appellate court that the 2nd defendant failed to offer sufficient reason to condone the delay seems to be unreasonable and against the settled principles of law in the filed.

In State of Nagaland v. Lipok Ao and Ors. [2005 (3) SCC 752], the two judge Bench of the Apex court dealt with the issue as to what constitute sufficient cause Paragraph Nos.8, 9, 11 and 12 are relevant in this context to be extracted which reads thus:

“8. The proof by sufficient cause is a condition precedent for exercise of the extraordinary restriction (sic discretion)vested in the court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. In N. Balakrishnan v. M. Krishnamurthy it was held by this Court that Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the Court has to go in the position of the person concerned and to find out if the delay can be said to have been resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case as sufficient. Although no special indulgence can be shown to the Government which, in similar circumstances, is not shown to an individual suitor, one cannot but take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheels.

What constitutes sufficient cause cannot be laid down by hard and fast rules. In New India Insurance Co.Ltd. v. Shanti Misra this Court held that discretion given by Section 5 should not be defined or crystallised so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause" should receive a liberal construction. In Brij Indar Singh v. Kanshi Ram it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain v. Kuntal Kumari a Bench of three Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.

xxxx                                                                   xxxx                                                                   xxxx

In State of Kerala v. E. K. Kuriyipe, it was held that whether or not there is sufficient cause for condonation of delay is a question of fact dependant upon the facts and circumstances of the particular case. In Milavi Devi v. Dina Nath, it was held that the appellant had sufficient cause for not filing the appeal within the period of limitation. This Court under Article 136 can reassess the ground and in appropriate case set aside the order made by the High Court or the Tribunal and remit the matter for hearing on merits. It was accordingly allowed, delay was condoned and the case was remitted for decision on merits.

In O. P. Kathpalia v. Lakhmir Singh a Bench of three Judges had held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay”.

So, the expression, 'sufficient cause' is adequately elastic to enable the court to apply the law in a meaningful manner. It should serve the ends of justice and it is also emphasised that the expression ‘every days delay must be explained’ does not mean that a pedantic approach should be made and the doctrine should be applied in a rationale commonsense and pragmatic manner.

In Kerala State Electricity Board v. Precot Meridian Ltd. (Manu/KE/1769/2016), it has been held by this court that in case of condonation of delay party should set out reasons in its application and bonafides of the party is a relevant criterion for condoning the delay.

In the present case, the records would go to show that the suit itself has been dismissed for default on three occasions. Though the suit was of the year 2010, the ex-parte decree has been passed only in 2018. It has come out that the only son of the 2nd defendant, aged 20 years died out of an accident in the interregnum. Even though, he filed petition to set aside ex-parte decree, it was happened to be dismissed for default, thereafter a petition for review also filed that was happened to be dismissed. So, explaining all those factors he had filed 1st appeal along with a petition to condone the delay. Moreover, suit has been filed for declaration, realization of money, settlement of account, share of income, perpetual injunction as well as for mandatory injunction with respect to 1st defendant Cardinal Padiyara Public School. But the 1st appellate court went on describing that the appeal is preferred against the preliminary decree passed by the court in a suit for partition. So, ambit and scope of the suit was lost sight of the 1st appellate court while dismissing the petition to condone the delay. So, at any rate in view of the peculiar circumstances of this case, though the delay sought to be condoned is long (that is 1117 days) as has been held by the Apex court what counts is not the length of the delay but the sufficiency of the cause. However, it has come out that the plaintiff after passing of ex-parte decree has been dragged to the 1st appellate court and thereafter before this Court at the instance of the defendants. The plaintiff/respondent appeared in person before this Court.

So taking into account the entire facts and circumstances, I find it just and proper to allow the appeal and set aside the order passed by the Munisff Court as well as 1st appellate court on condition that the appellants will pay cost of Rs.25,000/- to the respondent/plaintiff for allowing the appeal within a period of one week from today.

The learned counsel for the defendants would contend that they should be given an opportunity to file additional written statement, since the school is managed by a trust and trust has not been made a party. It has come out during argument that the Trust has been constituted subsequent to the filing of the suit. However, both sides are allowed to file additional pleadings if any with in 15 days of the receipt of certified copy of this judgment.

In the result, the ex-parte decree passed against the defendants by the trial court which has been confirmed by the 1st appellate court by dismissing the petition to condone the delay in filing the appeal and consequently dismissing the appeal are hereby set aside on condition afore mentioned.

The learned Principal Sub Judge is directed to dispose the case as expeditiously as possible being an old matter of 2010. On failure of the defendants to pay the cost of `25,000/-, the ex-parte decree and judgment passed by the Principal Sub Court will be restored.