Ningthoujam Biramangol Singh v. Yengkhom Ningol Ningthoujam Ongbiu Sakhi Devi
2005-07-11
TINLIANTHANG VAIPHEI
body2005
DigiLaw.ai
JUDGMENT T. Vaiphei, J. 1. Both these revision petitions involving a common question of facts are being disposed of by this common judgment. C.R.P. No. 72 of 2003 is directed against the judgment dated 26.11.1997 passed by the Ld. District Judge, Manipur East in Misc. Civil Appeal No. 5 of 1995 upholding the order dated 3.10.1994 passed by the Ld. Subordinate Judge No. 1 (as it then was), Manipur East in J.M. Case No. 50 of 1994 refusing to set aside the ex-parte decree dated 30.4.1993 passed in O.S. No. 51/86/13/87/82 of 1990. C.R.P. No. 73 of 2003 is directed against the judgment of the Ld. District Judge, Manipur East affirming the Order of the Ld. Subordinate Judge No. 1 rejecting the connected application for condonation of delay. 2. Before proceeding further, a brief survey of the facts and circumstances leading to the filing of the revision petitions is called for. However, since the grounds for setting aside the impugned ex-parte decree and the grounds for seeking condonation of delay are one and the same, suffice it to set out herein the material facts of C.R.P. No. 73 of 2003 i.e. condonation matter. The Original suit in question was pending before the Ld. Subordinate Judge No. 1, Manipur East. It is stated by the Petitioner that he had engaged Mr. Th. Modhu Singh, Advocate and his associate Advocate for conducting the suit on his behalf. According to the Petitioner, in the month of April, 1992, he was advised that his personal appearance in the proceeding was not required and that the case could be conducted by them with out his personal appearance and further that they would inform him as and when his personal appearance was required by the Court. It is the further case of the Petitioner that he did not thereafter appear in the said proceeding on the bonafide belief that his Advocates would take care of his case. According to the Petitioner, it transpired that the learned Subordinate Judge by judgment dated 30.4.1993 had passed the ex-parte judgment and decree, which he came to know only on 7.4.1994 when he met the said Th. Modhu Singh, Advocate at his Chamber. The Petitioner is stated to have filed on the same day an application for obtaining a certified copy of the said judgment and decree dated 30.4.1993.
Modhu Singh, Advocate at his Chamber. The Petitioner is stated to have filed on the same day an application for obtaining a certified copy of the said judgment and decree dated 30.4.1993. It is the case of the Petitioner that his counsel never informed him of the necessity for his personal appearance in the court nor did they file any application for determination of the vakalatnama executed by him in favour of his counsel before or after passing the said ex-parte judgment and decree. In the process, there was a delay of 11 months and 7 days in filing the application under Order IX Rule 13 of the Code of Civil Procedure, 1908. 3. The Ld. Subordinate Judge by the order dated 3.10.1994 in Judicial Misc. Case No. 51/1994 rejected the prayer for condonation of delay. The Ld. Subordinate Judge was of the view that the Petitioner had been keeping silent for about 1 (one) year after the passing of the ex-parte judgment and decree dated 30.4.1993 and that he never made any enquiry about his case from his counsel prior to 7.4.1994. The Ld. Subordinate Judge also recorded the finding that the Petitioner did not mention in detail the reason for condoning the delay in filing the application for setting aside the ex-parte judgment and decree. The Ld. Subordinate Judge further held that the delay was apparently on account of negligence, gross inaction and lack of bonafide on the part of the Petitioner and that no adequate cause was shown by him as to why he was sitting idle during all these period. Upon those findings, the Ld. Subordinate Judge refused to condone the delay. Consequently, the Ld. Subordinate Judge also on the same day dismissed the application filed by the Petitioner for setting aside the ex-parte decree. Aggrieved by these orders, the Petitioner filed two separate appeals before the Ld. District Judge, Manipur East, who, as noted earlier, by the impugned judgments dismissed the same. These judgments are now under challenge in these revision petitions. 4. In my considered view, the order of the Ld. Subordinate Judge refusing to condone the delay is not appealable and as such the appeal ought to have been dismissed at the very threshold on the ground of inherent lack of jurisdiction by the appellate Court.
These judgments are now under challenge in these revision petitions. 4. In my considered view, the order of the Ld. Subordinate Judge refusing to condone the delay is not appealable and as such the appeal ought to have been dismissed at the very threshold on the ground of inherent lack of jurisdiction by the appellate Court. Be that as it may, I shall first proceed to examine the revision petition filed by the Petitioner questioning the legality or otherwise of the order dated 3.10.1994 passed by the Ld. Subordinate Judge refusing to condone the delay. 5. It is submitted by Mr. N. Kerani Singh, the learned Sr. Advocate appearing for the Petitioner that the Petitioner did not commit any negligence in not attending the court on the date of hearing which resulted in the passing of the ex-parte judgment and decree against him and that it was the fault of his counsel who inspite of assurance given by him to the contrary, failed to conduct the case properly or omitted to inform him of the requirement to put in his personal appearance and as such the Petitioner should not be penalised for the negligence or inaction of his counsel. The further contention of the Ld. counsel for the Petitioner is that the explanation for the delay given by the Petitioner are satisfactory and the same constitutes sufficient cause for not filing the application for setting aside the judgment and decree in question in time. According to the learned Counsel for the Petitioner, the learned Subordinate Judge failed to appreciate the facts and circumstances disclosed by the Petitioner in proper perspective which resulted in erroneous finding of facts the impugned order is liable to be interfered with by this Court to prevent miscarriage of justice. Per-contra, Mr. T. Gogon Chandra Singh, the learned Counsel for the Respondents contends that the Petitioner has not made out any case for exercising the revisional jurisdiction of this Court. Learned Counsel for the Respondents submits that mere erroneous finding of facts or wrong decision of a court below, without jurisdictional error, cannot be a ground for interfering with the exercise of discretionary power. According to the learned Counsel, revision can be entertained only if there is improper exercise of jurisdiction by lower courts and in the absence of improper exercise of jurisdiction, this revision petition is liable to be dismissed. 6.
According to the learned Counsel, revision can be entertained only if there is improper exercise of jurisdiction by lower courts and in the absence of improper exercise of jurisdiction, this revision petition is liable to be dismissed. 6. I have given my anxious consideration to the rival submissions made by the counsel appearing for both sides. I have also carefully gone through the order passed by the learned Subordinate Judge and also the judgment of the learned District Judge. The parameter for exercise of jurisdiction by this Court under Section 115 of the Code in the matter of discretionary jurisdiction of lower courts are no longer res integra. It is not open to this Court in exercise of its revisional jurisdiction to question the findings of facts recorded by Subordinate Court. Section 115 applies to cases involving question of jurisdiction, i.e. the question regarding the irregular exercise or non exercise of jurisdiction or the illegal assumption of jurisdiction by court and is not directed against the conclusion of law or of fact in which question of jurisdictions are not involved. In this context, the following observations of the Apex Court in M.L. and B. Corporation v. Bhutnath, reported in AIR 1964 SC 1336 are instructive: The proposition that an erroneous decision on a question of limitation involves the question of jurisdiction applies to cases in which the law definitely ousts the jurisdiction of the Court to try a certain dispute between the parties and not to cases in which there is no such ouster of jurisdiction under the provisions of any law, but where it is left to the Court itself to determine certain matters as a result of which determination the Court has to pass a certain order and may, if necessary, proceed to decide the dispute between the parties. The distinction between the two classes of cases is that in one, the court decides a question of law pertaining to jurisdiction. In the other, it decides a question within its jurisdiction. 7. The Apex Court also held in the same case: Under Section 3 of the Limitation Act, is the duty of the Court not to proceed with the application if it is made beyond the period of limitation prescribed.
In the other, it decides a question within its jurisdiction. 7. The Apex Court also held in the same case: Under Section 3 of the Limitation Act, is the duty of the Court not to proceed with the application if it is made beyond the period of limitation prescribed. The Court has no choice and if in construing the necessary provision of the Limitation Act or in determining which provision of the Limitation Act applies, the Subordinate Court comes to erroneous decision, it is open to the High Court in revision to interfere with that conclusion as that conclusion led the Court to assume or not to assume the jurisdiction to proceed with the determination of that matter. Section 5 of the Limitation Act, on the other hand, empowers the Court to admit an application, to which its provisions are made applicable, even when presented after the expire of the specified period of limitation if it is satisfied that the applicant had sufficient case for not presenting it within time. The question whether there was a sufficient cause is exclusively within the jurisdiction of the Court and the Court can decide it rightly or wrongly. 8. It is clear that Section 5 of the Limitation Act empowers the Subordinate Court to admit an application, to which its provisions are made applicable, even when presented after the expiry of the specified period of limitation if it is satisfied that the applicant has sufficient cause for not presenting it within time. The Court, therefore, has jurisdiction to determine whether there was sufficient cause for the Appellant for not making the application for setting aside the ex-parte judgment and decree in time and if so satisfied, to condone the delay. In the instant case, the learned Subordinate Judge has already held that no sufficient cause was made out by the Petitioner for not filing the application for setting aside the ex-parate judgment and decree within time. I have already noted the reasons assigned by the learned Subordinate Judge for coming to those conclusions. As observed by the Apex Court in the aforecited case, the learned Subordinate Judge has been invested with the jurisdiction to determine whether there was sufficient cause for the Petitioner in not making such an application within time.
I have already noted the reasons assigned by the learned Subordinate Judge for coming to those conclusions. As observed by the Apex Court in the aforecited case, the learned Subordinate Judge has been invested with the jurisdiction to determine whether there was sufficient cause for the Petitioner in not making such an application within time. Having determined that there was no sufficient cause, it will not be proper for this Court to hold otherwise; because that will amount to substituting the view of the learned Subordinate Judge by the view of this Court. 9. I am prepared to concede that perhaps if I sat on the Subordinate Court, I might have taken a decision different from the decision of the learned Subordinate Judge. But sitting in are visional Court, to substitute the view of the learned Subordinate Judge by my view will not be proper, for the learned Subordinate Judge has, undoubtedly, the jurisdiction to decide the matter rightly or wrongly. A wrong decision would not justify this Court to interfere in the discretionary jurisdiction exercised by the Subordinate Court. Moreover, the view taken by the trial court that there was no sufficient cause for condoning the delay is a possible view and not a perverse view and if there are two possible views on a matter, interference with the order impugned on ground of possibility of Anr. view is not permissible in a revision petition. Mr. N. Kerani Singh, the learned Senior Counsel, draws my attention to the judgment dated 10.2.2005 passed by this Court (Imphal Bench) in C.R.P. No. 85 of 2003 (Unreported) and vehemently submits that this decision is applicable to the facts of the instant case. I have carefully perused the judgment and examination of the decision indicates that the question of jurisdictional matter was neither raised nor discussed therein and, therefore, that decision must be confined to the peculiar circumstances of the case. 10. Once it is held that the order of the Ld. Subordinate Judge refusing to condone the delay is not liable to be interfered with, there is no reason for taking a contrary view in the order refusing to set aside the ex-parte decree dated 30.4.1993 when the prayer therein was also based on the same grounds. Therefore, C.R.P. No. 72 of 2003 must also meet the same fate.
Subordinate Judge refusing to condone the delay is not liable to be interfered with, there is no reason for taking a contrary view in the order refusing to set aside the ex-parte decree dated 30.4.1993 when the prayer therein was also based on the same grounds. Therefore, C.R.P. No. 72 of 2003 must also meet the same fate. In that view of the matter, both the impugned orders and judgments in the revision petitions are in order and do not warrant the interference of the Court. 11. For what has been stated above, both the Revision Petitions are without substance and are liable to be dismissed, which I hereby do. However, the parties are to bear their own cost. Petition dismissed.