K. Seetrimayum Kulla Singh v. Wangkhem Ningol Pheiroijam Ongbi Nupimacha Devi & Others
1987-08-31
J.M.SRIVASTAVA
body1987
DigiLaw.ai
This revision is directed against the order dated 10.1.86 passed by the learned Addl. District Judge II, Manipur in Judl. Misc. Case No. 49 of 1985 whereby delay in preferring appeal was condoned. 2. There has been long drawn out litigation, but briefly the facts giving rise to this revision are that the present petitioner had filed Original Suit No. 9 of 1985 against the present O. Ps. No. 1 to 3 and the present Proforma Opposite Party No. 4. The petitioner had also prayed for injunction against the Opposite Parties No. 1 to 3 (hereafter referred as Opposite Parties) and an Exparte Order for status-quo was mada on 11.2 85, which after hearing the parties was confirmed on 15.4.85. The Opposite Parties filed a revision in this Court on 13.5.85 which was Civil Revision No. of 6 of 1985. At the time of hearing of the said revision, a preliminary objection had been raised that the revision was not competent. This Court by order dated 15.7.85 dismissed the revision on the ground that the revision did not lie and that the appellant should file appeal against the order and made the following observation : - "If and when an appeal is filed there is no reason why the appellate Court should not consider the period of pendency of this revision petition before this Court, namely, from 13.5.85 to 15.7.85. This period need be considered for the purpose of condonation of delay in filing the appeal under the facts and circumstances of the case, the petitioner having bonafide belief that a revision would lie and not an appeal." The Opposite Parties then filed appeal before the District Judge which was Civil Misc. Appeal No. 1 of 1985 with prayer for condonation of delay under Section 5 read with Section 14 of the Indian Limitation Act, 1963 which was Judl. Misc. Case No. 29 of 1985. The petition was allowed without notice to the present petitioner who filed revision against the order and this Court allowed the revision and the Court of District Judge was directed to hear the parties on the matter of condonation of delay. After bearing the parties, the learned Additional District Judge condoned the delay by order dated 10.1.86 impugned in this revision. 3. Mr.
After bearing the parties, the learned Additional District Judge condoned the delay by order dated 10.1.86 impugned in this revision. 3. Mr. N. Kerani Singh, learned counsel for the petitioner has contended that the Court below had gravely erred in condoning the delay, because no sufficient cause for delay had been made out, the revision proceeding was quite unjustified and was due to negligence that the learned counsel for the Opposite parties on whose advice the revision had been filed, had not given any affidavit and it could not be accepted that the revision was a bonafide proceeding as could entitle the Opposite parties to the benefit of the provision of Sec. 5 or Sec. 14 of the Limitation Act. In short, the submission is that the delay was illegally condoned by the impugned order whish should therefore be set aside. 4. Mr. A Nilamoni Singh, learned counsel for the opposite parties, has refuted the submissions for the petitioner and has contended that the application for injunction had mentioned 0.39 R. 1,2,3 and Sec. 151 C.P.C., the order made was for maintenance of status quo between the parties and it was, tharefore, not clear that appeal lay against the order, besides this Court in an order dated 23.9.81 copy at Annexure B/2 had taken the view that against such an order appeal doss not lie and directed appeal filed to be treated as revision and accordingly It was felt that revision was appropriate remedy which was promptly filed and diligently pursued. Mr. A. Nilamani Singh has submitted that the revision had been filed within 30 days of the order dated 15.4.85, which clearly showed the bonafide of opposite Parties 1 to 3 and there could be no doubt that the revision had bonafide been filed in this Court on the advice obtained, that the Opposite parties had diligently pursued remedy even after this Court made the order on 15.7.85, since the appeal was filed on 17.7.85. The learned counsel for the Opposite Parties has submitted that in view of the decision of this Court referred above in Annexure B/2 and the observation of this Court in order dated 15.7.85, and affidavit-in- support from the counsel was not necessary and the Opposite Parties had filed the revision as advised by their counsel.
The learned counsel for the Opposite Parties has submitted that in view of the decision of this Court referred above in Annexure B/2 and the observation of this Court in order dated 15.7.85, and affidavit-in- support from the counsel was not necessary and the Opposite Parties had filed the revision as advised by their counsel. It was also submitted that sufficient cause for delay had been found by the Court below and there was no reason for this Court to take a different view and no interference with the impugned order was required. 5. I have considered the submissions of the learned counsel for the parties. 6. The absence of affidavit from the learned counsel, on whose advice the revision had been filed against the order dated 15.5.85, in my opinion, is not material, because the specific assertion in the affidavit-in-support that the revision was preferred in the High Court on the basis of advice obtained from the learned counsel, is quite reasonable and in all probability correct for otherwise there was no reason to go to High Court, when appeal could as easily have been filed before the District Judge at Imphal itself. Considering that the revision was filed promptly within 30 days, also shows that the remedy was sought expeditiously in all good faith. I have, therefore, not found any good reason not to place reliance on the affidavit-in-support that the said revision was preferred on the advice given by the learned counsel. Considering that the petition for injunction bad mentioned Rules 1, 2 and 3 of Order 39 and Section 151 of the Code of Civil Procedure that the order made by the Court was for maintenance of status-quo between the parties as on date and also that in an earlier order of this Court on 23.8.81 in Misc. Case No. 15 of 1981 at Annexure B/2, in respect of & similar order, a view was taken that appeal did not lie and the appeal filed was treated as revision, it may be said that there was reasonable basis for the said advice. In my opinion, therefore, it could not be said that there was any negligence or lack of bonafide in taking action on the said advice. The Opposite Parties bad in good faith diligently pursued the said revision and after its disposal, filed the appeal.
In my opinion, therefore, it could not be said that there was any negligence or lack of bonafide in taking action on the said advice. The Opposite Parties bad in good faith diligently pursued the said revision and after its disposal, filed the appeal. I am, therefore satisfied that the Opposite Parties were entitled to exclude the time during which they pursued the said revision i. e. from 13.5.85 to 15.7.85 in computing the period of limitation under the provision of Section 14 of the Indian Limitation Act, 1963. Moreover, I am also of the view that the delay for the aforesaid period could also be condoned in pursuance of the provisions of Section 5 of the Indian Limitation Act, because bonafide proceeding pursued in a wrong forum resulting in delay should be considered good and sufficient cause for condonation of such delay. The delay in filing the appeal was therefore rightly condoned by the learned Additional District Judge. The view taken by the learned Court below was justified and correct. This revision has no merit and is dismissed. The parties to bear their own costs. Let the record be sent back immediately. The parties are directed to appear in the Court below on 15.9.87.