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

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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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