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

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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

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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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