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2016 DIGILAW 9 (MAN)

Khen P. Tombing v. P. Nengzadou

2016-01-25

L.K.MOHAPATRA

body2016
JUDGMENT : The order dated 7.12.2015 passed by the learned District Judge, Churachandpur in Judl.Misc.Case No.11 of 2015 arising out of RFA No.3 of 2015 is the subject matter of challenge in this revision. In the impugned order, the learned District Judge, Churachandpur has condoned the delay of 185 days in filing the appeal. 2. Mr. K. Modhusudon, learned counsel appearing for the petitioner submits that the delay of 185 days in filing the appeal has not been explained properly by the respondent No.1. It is, further, contended that the grounds taken in the application for condonation of delay are contrary to the conduct of the counsel appearing on behalf of the respondent no.1 before the appellate court and the learned District Judge should have taken note of the same and dismissed the application for condonation of delay. 3. The respondent no.1 has preferred the first appeal before the learned District Judge, Churachandpur against the judgment and decree dated 9.3.2015 passed by the learned Civil Judge (Senior Division), Churachandpur in Original Case Suit No. 20 of 2014/O.S. No.4 of 2011. In preferring the said appeal, there was a delay of 185 days. The application for condonation of delay is annexed to the revision as Annexure-A/6. It is stated in the petition that the counsel, who was conducting the Suit on behalf of the respondent no.1 in the trial court came to the house of the said respondent no.1 on 2.4.2015 and informed that the Suit had been decreed in favour of the present petitioner and also asked the respondent no.1 to come to his office chamber to discuss as to whether an appeal should be preferred or not. The last date for filing the appeal being 7.4.2015, the respondent no.1 was asked to meet his counsel on 7.4.2015 for filing the appeal. It is, further, stated in the petition that on 7.4.2015 at about 9.00 AM, in the morning, the respondent no.1 met his counsel for filing the appeal. Since the said counsel was busy and was not able to prepare the appeal memo, the respondent no.1 took 10(ten) days’ further time to engage a new counsel and accordingly he contacted one Mr. S. Devjit Singh, Advocate for filing the appeal and handed over the papers to him. He was asked by the counsel to come on 4.5.2015 for filing the appeal. S. Devjit Singh, Advocate for filing the appeal and handed over the papers to him. He was asked by the counsel to come on 4.5.2015 for filing the appeal. When the respondent no.1 went to the office of his newly engaged counsel on 4.5.2015, he was informed that the appeal memo could not be prepared as the wife of the said counsel was suffering from different ailments. 4. The respondent no.1, thereafter, again went to the office of his newly engaged counsel on 8.7.2015 for preparation of the appeal memo and also requested him to appear in the execution case filed by the petitioner in the court of the learned Civil Judge (Senior Division), Churachandpur. On that day, the learned counsel assured the respondent no.1 that he would complete preparation of the appeal memo by 9.7.2015 and instructed to come to the Court of the learned District Judge, Churachandpur for filing the appeal. Further, on 9.7.2015, the said counsel could not come to the Court because of curfew imposed in Imphal West District. Due to further disturbance in the area because of bandhs, blockades and general strikes, the respondent no.1 could not contact his counsel till 20.08.2015. However, he contacted him on 21.08.2015 and was asked to meet the counsel again on 1.9.2015 in the premises of the Court of the District Judge, Churachandpur. On 1.9.2015, there was agitation in relation to passing of I.L.P. Bill on 31.8.2015 and again curfew was clamped. The disturbance continued for almost a week and only on 12.10.2015, the appeal could be filed. This explanation is given for the delay in the application filed by the respondent no.1 for condonation. 5. An objection was filed on behalf of the present petitioner to the said application and it is stated in the objection that the respondent no.1 filed his objection in the execution case on 24.7.2015 and if he could come to the Court on 24.7.2015 for fling the objection to the execution case, there was no reason why he could not prefer the appeal, before the learned District Judge, Churachandpur. 5. The learned District Judge, Churachandpur was satisfied with the explanation given by the respondent no.1 and condoned the delay of 185 days in preferring the appeal and also directed the respondent no.1 to pay cost of Rs.10,000/- to the present petitioner. 6. 5. The learned District Judge, Churachandpur was satisfied with the explanation given by the respondent no.1 and condoned the delay of 185 days in preferring the appeal and also directed the respondent no.1 to pay cost of Rs.10,000/- to the present petitioner. 6. It is stated by the learned counsel for the petitioner that an applicant seeking for condonation of delay must satisfy the court that he was prevented by sufficient causes in prosecuting his case and unless satisfactory explanation is furnished, the court should not allow the application for condonation of delay. The court must also examine whether the delay is bona fide one or merely a device to cover an ulterior motive. Relying a decision of the Apex Court in the case of Basawaraj & Anr. Vs. Special Land Acquisition Officer reported in (2013) 14 SCC 81 , it is further contended that law of limitation may harshly affect a particular party but it has to be applied with all its vigour when the statute so prescribes. The court has no power to extent the period of limitation on equitable grounds. Reliance is also placed on another decision of the Apex Court in the case of D. Gopinathan Pillai Vs. State of Kerala and Anr. Reported in (2007) 2 SCC 322 . With reference to the above decisions, it is also contended by the learned counsel for the petitioner that when a mandatory provision is not complied with and when the delay is not satisfactorily and convincingly explained, the court cannot condone the delay only on sympathetic ground. 7. Keeping in mind the above two decisions, the explanation given by the respondent no.1 in his application for condonation of delay has to be examined. As stated earlier, the respondent no.1 was informed about the disposal of the Suit on 7.4.2015 though the Suit had been decreed on 9.3.2015. The counsel who was conducting the Suit did not find time to prepare the appeal memo though he had asked the respondent no.1 to come to his office chamber on 2.4.2015. As the result of conduct of the said counsel, the respondent no.1 had to engage another counsel and took 10 days to discuss with his newly engaged counsel to file an appeal. The newly engaged counsel, Mr. As the result of conduct of the said counsel, the respondent no.1 had to engage another counsel and took 10 days to discuss with his newly engaged counsel to file an appeal. The newly engaged counsel, Mr. S. Devjit Singh also took a lot of time in presenting the appeal memo in the court due to illness of his wife and also due to disturbance in Churachandpur. Therefore, Mr. S. Devjit Singh, the learned counsel for the respondent no.1 also filed an affidavit, which is the subject matter of Annexure-A/11 to the revision petition explaining the delay because of his own family handicaps. It is stated in paragraph-3 of the affidavit of the said counsel that towards the middle part of the month of April, 2015 the respondent no.1 had engaged him for preferring an appeal. He accepted the brief and asked the respondent no.1 to come on 4.5.2015 for filing the appeal. In paragraph-4 of the affidavit, he stated that his wife was suffering from various diseases since 2012 and towards the second part of April, 2015 her condition became worse and she was bed ridden. In paragraph-5 of the affidavit, he stated that because of ailing his wife, he was to look after his 95 year old mother and three minor school going children and he could not find time to prepare the appeal memo. Though the learned counsel for the petitioner submits that this affidavit should not have been accepted by the court having not been signed by the learned counsel, I find that the signature of the learned counsel does not appear at the right place but he has singed the affidavit which has been notarized. In considering the conduct of the respondent no.1 in taking all necessary steps for preferring the appeal in time and also on consideration of the affidavit of the learned counsel, who has been engaged by the respondent no.1, to file the appeal, I am of the view that the learned District Judge was justified in accepting the explanation given by the respondent no.1 in his petition coupled with the affidavit given by the learned counsel appearing for him and condoning the delay in preferring the appeal. 8. I, therefore, find no justification to interfere with the impugned order. The revision is accordingly dismissed.