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2017 DIGILAW 30 (MEG)

Klerentina Lyngdoh Shiji v. Norman Syiemiong

2017-05-11

DINESH MAHESHWARI

body2017
JUDGMENT : 1. As per the affidavit of service, the postal article containing notices for the respondent No. 3 was delivered to the addressee on 04.03.2017. Hence, service on respondent No. 3 is taken as sufficient. None is present for the respondent No. 3 but the contesting respondents are duly represented by the learned Senior Advocate Shri ND Chullai with Shri A. Pakyntein. 2. With the consent and at the request of the learned counsel for the contesting parties, this revision petition is taken up for final disposal at this stage itself. 3. This revision petition under Rule 6 of the High Court of Meghalaya (Jurisdiction over District Council Court) Order, 2014 read with Article 227 of the Constitution of India is directed against the judgment and order dated 23.03.2016 as passed in Misc. Civil Appeal No. 14 of 2011 whereby, the learned Judge, District Council Court, Khasi Hills, Shillong has set aside the order dated 15.09.2011 as passed by the learned Judge, Subordinate District Council Court, Khasi Hills, Shillong for restoration of the title suit filed by the present petitioners, being T.S. No. 11 of 1993. 4. The relevant background aspects of the matter are that the present petitioners had filed the aforesaid title suit [T.S. No. 11 of 1993] for declaration and consequential relief’s, while claiming that themselves and their clan, commonly known as Lyngdoh Shiji clan, were the genuine owners having right, title and interest over the land described in Schedule A and B to the plaint. The title suit so filed by the petitioners was dismissed for default of appearance on 27.08.2008. It appears that the application seeking restoration of the suit was filed on behalf of the petitioners/plaintiffs after an inordinate delay of about 2 years and 7 months. This application seeking restoration of the suit was considered and allowed by the learned Judge, Subordinate District Council Court by way of the order dated 15.09.2011, inter alia, with the observations that most of the plaintiffs in the suit were older in age, were residing in far interior places, and plaintiff No. 5 had expired on 05.05.2005 during the pendency of the suit; and if their lawyers did not pursue the case diligently, the plaintiffs should not be left to suffer. The learned Judge, while expressing the view that even the excessive delay in filing the application could be condoned, allowed the application and set aside the order dated 27.08.2008 so as to restore the suit to the file while directing that the plaintiffs would take necessary steps for substitution of the legal representatives. 5. As against the aforesaid order dated 15.09.2011, two appeals were filed before the learned Judge, District Council Court by different sets of defendants: one being Misc. Civil Appeal No. 14 of 2011 by the respondents No. 1 and 2 of the present petition; and the other one being Misc. Civil Appeal No. 16 of 2011 by 71 other defendants. It is noticed from the record that on 19.05.2014, after hearing, the learned Judge, District Council Court reserved the judgment in Appeal No. 14 of 2011; but ultimately delivered the judgment only on 23.03.2016 and allowed the appeal so filed by the respondents No.1 and 2. In the meantime, the other appeal bearing No. 16 of 2011, arising out of the same impugned order dated 15.09.2011, was disposed of by the same learned Judge, District Council Court on 19.09.2014 in view of the settlement between the parties. Significantly, before such disposal of Appeal No. 16 of 2011, the petitioners/plaintiffs had filed a fresh title suit, being T.S. No. 8 of 2012 in the Subordinate District Council Court, Shillong and this suit was decreed ex parte on 17.02.2014. Before dilating on various facets of the matter emanating from disposal of Appeal No. 16 of 2011 as also the said title suit bearing No. 8 of 2012, appropriate it would be to take note of the considerations of the learned Judge, District Council Court in the impugned judgment and order dated 23.03.2016 for allowing the appeal filed by one set of defendants (respondents No. 1 and 2 herein). 6. In the impugned judgment and order dated 23.03.2016, the learned Judge reproduced, in extenso, the written arguments submitted by the learned counsel for the parties. After such reproduction, the learned Judge observed that the plaintiffs remained absent on many occasions and ultimately, the suit was dismissed on 27.08.2008. 6. In the impugned judgment and order dated 23.03.2016, the learned Judge reproduced, in extenso, the written arguments submitted by the learned counsel for the parties. After such reproduction, the learned Judge observed that the plaintiffs remained absent on many occasions and ultimately, the suit was dismissed on 27.08.2008. The learned Judge further observed that the plaintiffs slept over their claim for more than 2 years and 7 months and thereafter, filed the application for restoration while blaming the lawyers but then, if the parties remained irresponsible and negligent, the lawyers could not proceed with the case. The learned Judge observed that in the present matter, not only the lawyers but the plaintiffs were equally irresponsible in neglecting their duties; and if acting diligently, they would have filed the restoration application within 30 days. The learned Judge, thereafter, referred to the decision of the Hon’ble Bombay High Court to point out that the limitation for filing an application for restoration is 30 days from the date of dismissal and not from the date of knowledge. The learned Judge also referred to a decision of the Hon’ble Karnataka High Court that the negligence of lawyer is not a valid ground for restoration. With these observations and considerations, the learned Judge proceeded to allow the appeal [No.14 of 2011] and to set aside the impugned order dated 15.09.2011. The learned Judge observed and concluded as under: “I have carefully perused the Written Arguments submitted before this Court by the Ld. Counsels for both parties, the Memorandum of Appeal along with its Annexures as well as the case records received from the Ld. Lower Court. As appeared from the case records received from the Ld. Lower Court, the Respondents/Plaintiffs have on many occasions remained themselves absent from the Court which culminated to the dismissal of the suit on 27.8.2008. Further, as appeared from the case record, right from the date of the dismissal order, the Respondents/Plaintiffs slept over their own claims for more than 2 (two) years and 7 (seven) months and after a lapse of more than 2 (two) years and 7 (seven) months, the Respondents/Plaintiffs rose up from their sleep and filed a Petition No. 83/11 for restoration of the suit, by blaming their lawyers about the fate of their case. The Lawyers always used to conduct the case on behalf of the parties and if the parties are irresponsible and neglect their duties, it shall not be possible for the lawyers to proceed with the case in the absence of the parties. Therefore, from the case records, it appears that not only the lawyers of the Respondents/Plaintiffs who are irresponsible, but the Respondents/Plaintiffs are equally irresponsible by neglecting their duties. Therefore, I do not agree with the Respondents/Plaintiffs with their plea that the suit was dismissed because of the negligence of their lawyers. I am of the opinion that if the Respondents/Plaintiffs are really diligent in prosecuting the suit, they should have come and filed a restoration petition within 30 (thirty) days’ time. In the case of Madhavi S. Kulkarni vs. Vishram S. Bhakre as reported in AIR 2007 Bom.61 (Nagpur Bench), the Hon’ble Bombay High Court observed as under: “An application for restoration is required to be filed under Article 122 of the Limitation Act within 30 days of dismissal and not from the date of knowledge.” Whereas in the case under instant Appeal the Respondent/Plaintiffs filed a petition under Order 9 Rule 9 C.P.C for restoration of the suit after a lapse of a period of 2 (two) years 7 (seven) months without any prayer for condonation of the delay in filing the same. In my opinion, it should be the duty of the parties to enquire from their lawyers about the status of the case, if at all the parties are diligent with their case. Therefore, I am of the considered view that blaming the lawyers after a lapse of 2 (two) years and 7 (seven) months of their (lawyers) negligence is not acceptable on my part. In a case of Syed Mujibur Rahman vs. Abdul Azeez as reported in AIR 2002 Kant.104 it has been observed as follows: “Negligence of Counsel could not be accepted as valid cause in filing application for restoration of suit.” Therefore, in view of my above observations, I am satisfied to allow the instant Appeal. The Appeal is allowed and the impugned Order dated 15.9.2011 passed by the Ld. Lower Court in Title Suit No. 11 of 1993 is hereby quashed and set aside. However, in the nature of the case, no order is passed as to cost. Case stands disposed off.” 7. The Appeal is allowed and the impugned Order dated 15.9.2011 passed by the Ld. Lower Court in Title Suit No. 11 of 1993 is hereby quashed and set aside. However, in the nature of the case, no order is passed as to cost. Case stands disposed off.” 7. Now and before proceeding further, the facts relating to the disposal of Appeal No. 16 of 2011 as also the said title suit bearing No. 8 of 2012 could be taken note of. As noticed, the aforesaid order dated 15.09.2011, as passed by the Judge, Subordinate District Council Court for restoration of T.S. No. 11 of 1993, was also challenged by other set of defendants in Appeal No. 16 of 2011 before the same Appellate Court. In this Appeal No. 16 of 2011, an application bearing No. 722 of 2014 was filed by the parties, inter alia, pointing out that the petitioners/plaintiffs had filed a fresh title suit against the appellant No. 1 of the said appeal (who is arrayed as respondent No. 3 in the present revision petition), being T.S. No. 8 of 2012; and that there had been a settlement between the parties wherefor, the said appeal was rendered infructuous. The relevant contents of the said application, filed jointly by the parties of Appeal No. 16 of 2011, who had arrived at the settlement, had been as under: “Humble Joint Applicants beg to state as follows:- 1. That the Durbar Kur (General Meeting of the clan) of the Lyngdoh Shiji clan which was held on 04.03.2011, had unanimously authorized the Joint Applicants No.1 and No.2 above, to represent the whole clan collectively in regard to filing of suits, cases, appeals, appointment of lawyers, settlement, compromise, etc., and to do all acts and deeds in regard to the protection of their collective rights, title and interests on behalf of the whole clan in respect of their ancestral landed properties within Langrin Syiemship. (Copy of the Resolution and Authorization dated. 04.03.2011 is enclosed herewith as Annexure-1) 2. (Copy of the Resolution and Authorization dated. 04.03.2011 is enclosed herewith as Annexure-1) 2. That except for the Appellant No.1 in the instant appeal, all the rest of the appellants had settled the matter amicably outside the Court with the Respondents and all their clan members vide Compromise/Settlement Deed dated 05.11.2011 duly executed in the presence of the village headmen; the Acting Syiem; and other officials of Langrin Syiemship, in respect of the Schedule-A given in the original Title Suit No.11 of 1993. (Copy of the Settlement Deed dated 05.11.2011 is enclosed as Annexure-2). 3. That in the original Title Suit No.11 of 1993, the predecessors-in-interest and the representatives of the respondents as plaintiffs had filed the suit in respect of two plots of land which are Schedule-A and Schedule-B respectively, and in view of the above settlement, the whole nature of the suit had changed; the whole subject matter of the suit has changed; the names of the parties have changed; the causes of action have changed; the boundaries have changed; and as no finality was given to the suit and appeal, there is no bar to file fresh suit, which the respondents had filed a fresh Title Suit against the Appellant No.1 in the instant appeal and against two others in the Misc. Civil Appeal No.14 of 2011 in regard to the land in Schedule-B only as given in the original plaint. 4. That the said title suit was registered in November, 2012 as Title Suit No.8 of 2012 before the Learned Court of Smt. L.W. Phira, Presiding Officer, Subordinate District Council Court, Shillong with the notices duly served upon the appellants/defendants who had also entered appearance personally and the last date was fixed on 29.05.2013, for filing of written statements. (Copies of the plaint and the documents are enclosed as Annexure-3 to Annexure-9). 5. That in view of the above settlement dated. 05.11.2011 outside the Court in regard to the Schedule-A as given in the original Title Suit No.11 of 1993 before the Learned Trial Court below, and in view of the fresh Title Suit which had been filed, the instant appeal has become in-fructuous.” 8. 5. That in view of the above settlement dated. 05.11.2011 outside the Court in regard to the Schedule-A as given in the original Title Suit No.11 of 1993 before the Learned Trial Court below, and in view of the fresh Title Suit which had been filed, the instant appeal has become in-fructuous.” 8. It is noticed that on the said joint application, the settlement between the parties was duly recognised by the Appellate Court and the appeal [No.16 of 2011] was disposed of on the basis of settlement by the order dated 19.09.2014 while observing and directing as under:- “Therefore, in view of my observations, Petition No. 722/14 is allowed and the Deed of Settlement signed by both the parties is hereby allowed and shall form part of this Order. Petition No. 722/14 is allowed and the instant appeal is hereby disposed off on the basis of the said Settlement Deed and both the parties are directed to abide by the same”. 9. Interestingly, the said fresh suit filed by the petitioners [T.S. No. 8 of 2012] proceeded ex parte when the defendants did not appear; and was decreed by way of the judgement and decree dated 17.02.2014 (Annexure – 10 to this petition). 10. Reverting to the impugned aforesaid judgment and order dated 23.03.2016 as passed in Appeal No. 14 of 2011, apart from the other submissions, it has been strenuously argued by the learned senior counsel Shri GS Massar that in fact, the present petitioners wanted to withdraw from the previous title suit bearing No. 11 of 1993 with permission to file afresh but the necessary steps could not be taken in that regard for the reason that the record of T.S. No. 11 of 1993 had been requisitioned by the learned Judge, District Council Court in the aforesaid two Misc. Civil Appeals and in the given circumstances, the present petitioners filed another petition bearing No. 83 of 2013 before the learned Judge, District Council Court for terminating the proceedings in Misc. Civil Appeal No. 14 of 2011 in view of the fact that other title suit (T.S. No. 8 of 2012) had already been filed but the learned Appellate Judge totally omitted to take the same into consideration. According to the learned counsel, the grievance of the petitioners is that in Misc. Civil Appeal No. 14 of 2011 in view of the fact that other title suit (T.S. No. 8 of 2012) had already been filed but the learned Appellate Judge totally omitted to take the same into consideration. According to the learned counsel, the grievance of the petitioners is that in Misc. Civil Appeal No. 14 of 2011, the learned Judge, District Council Court reserved the judgment as back as on 19.05.2014 but thereafter, took up the matter only on 15.03.2016 and posted it for delivery of judgment on 23.03.2016 and then, delivered the judgment almost two years from the date of hearing without considering the other relevant facts and factors having direct bearing on the matter. The learned counsel would submit that as a matter of fact, on 17.02.2014, the Trial Court had passed the decree in the subsequently filed title suit i.e., T.S. No. 8 of 2012 but on 05.12.2016, the respondents further attempted to intrude into the suit land whereupon, the petitioners approached the police officers concerned who, however, declined to take any action in the matter. It is submitted that dismissal of Appeal No. 14 of 2011 has led to an entirely incongruous position where, on one hand the judgment and decree dated 17.02.2014 in T.S. No. 8 of 2012 stand in favour of the petitioners but on the other hand, restoration of T.S. No. 11 of 1993 has been declined by the impugned judgment and order dated 23.03.2016 and technically, the said previous suit stands with its dismissal. It is submitted that the impugned judgment dated 23.03.2016 deserves to be set aside because the learned Judge has ignored the petition bearing No. 83 of 2013 that had been filed by the petitioners for dropping the proceedings in appeal. It is also submitted that the learned Judge has failed to examine the effect of the judgment and decree dated 17.02.2014 in T.S. No. 8 of 2012 and the impugned judgment has brought about rather confusing position, where two conflicting propositions stand as regards the dispute between the parties from two different Courts of competent jurisdiction. 11. It is also submitted that the learned Judge has failed to examine the effect of the judgment and decree dated 17.02.2014 in T.S. No. 8 of 2012 and the impugned judgment has brought about rather confusing position, where two conflicting propositions stand as regards the dispute between the parties from two different Courts of competent jurisdiction. 11. The learned senior counsel Shri ND Chullai appearing for the respondents No. 1 and 2 has, on the other hand, duly supported the judgment and order impugned with the submissions that there had been no satisfactory explanation for an inordinate delay of more than two and half years in filing the application for restoration. According to the learned counsel, the Appellate Judge cannot be faulted in disapproving the order of restoration that was passed without proper appreciation of the relevant facts and the law applicable to the case. Though the learned counsel has not disputed the facts relating to other Misc. Civil Appeal No. 16 of 2011 and its disposal by way of the order dated 19.09.2014 but has argued that the very maintainability of T.S. No. 8 of 2012 remains seriously in question. 12. Having given thoughtful consideration to the rival submissions and on perusal of the record, even when this Court finds the shortcomings on several scores and at several levels in this matter but, on its substance, it appears just and proper that both the title suits [No. 11 of 1993 as also No. 8 of 2012] be restored to their original numbers and be placed for analogous consideration before the learned Judge, Subordinate District Council Court, Khasi Hills, Shillong. 13. True it is that Title Suit No. 11 of 1993 was dismissed in default in the year 2008; and it appears that during the pendency of the suit, some of the plaintiffs had expired and some had gone old who did not take requisite steps for prosecuting the matter. However, looking to the nature of litigation and the status of the parties, it cannot be said that the petitioners/plaintiffs had remained oblivious of their rights or had surrendered their claim. However, looking to the nature of litigation and the status of the parties, it cannot be said that the petitioners/plaintiffs had remained oblivious of their rights or had surrendered their claim. True further it is that the application for restoration was filed after a lapse of 2 years and 7 months from the date of dismissal; and the order dated 15.09.2011 as passed by the trial Court for restoring the suit had not been elaborate on all the factual aspects but then, on its substance, the said order was passed so as to advance the cause of justice and for consideration of the matter on merits. 14. The significant aspect of the matter remains that against the same order dated 15.09.2011, the other set of defendants had filed Misc. Civil Appeal No. 16 of 2011; and during the pendency of the said appeal, Title Suit No. 8 of 2012 came to be filed by the present petitioners and there had been a settlement of the petitioners with appellants of that appeal. These facts were placed before the Court in Misc. Civil Appeal No. 16 of 2011 and the same Court, that had been dealing with both the appeals bearing No. 14 of 2011 and No. 16 of 2011, proceeded to endorse the said settlement; and on 19.09.2014, disposed of the said other appeal [No. 16 of 2011] accordingly. On the other hand, the subsequent suit filed by the plaintiffs (T.S. No. 8 of 2012) had already been decreed ex parte on 17.02.2014 (curiously enough, this fact does not find mention in the order dated 19.09.2014 as passed in disposal of Appeal No. 16 of 2011). 15. As regards Appeal No. 14 of 2011, though the learned Judge reserved the judgment as back as on 19.05.2014, it appears that the matter was kept pending for an inexplicably long length of time and then, the judgement was delivered on 23.03.2016. Significantly, the same learned Judge dealing with the appeal bearing No. 14 of 2011 had otherwise endorsed the settlement relating to the land in dispute, of the present petitioners/plaintiffs with some other defendants in Appeal No. 16 of 2011 on 19.09.2014; and while passing the impugned judgment and order dated 23.03.2016, the learned Judge did not take into consideration the pending Misc. Application bearing No. 83 of 2013 and also ignored the fact about filing of fresh title suit by the petitioners [T.S. No. 8 of 2012]. 16. Apart from the aforesaid, the learned Judge also did not consider that ordinarily, an order granting an application for restoration in terms of Order IX Rule 9 of Civil Procedure Code is not open to appeal. Even if the Code of Procedure is not directly applicable, the spirit thereof, as emanating from Order XLIII Rule 1(c), makes it clear that only an order rejecting the application for restoration is open to appeal; and as such a specific provision makes it clear that a converse order i.e., an order granting an application to set aside the dismissal of civil suit under Order IX Rule 9 is not open to appeal. The reason is obvious that once an order is passed to set aside the default dismissal of a suit, the cause of justice is served inasmuch as the matter is set again for its disposal on merits. It remains trite that in the Court of law, the matter is preferred to be decided on its merits rather than being disposed of on technicalities or on defaults. The rules of procedure are essentially intended to sub-serve the cause of justice rather than to penalise the parties for their defaults, whether such defaults are attributable to the parties themselves or their recognised agents/lawyers. Where the trial Court exercises its jurisdiction in restoring the suit to its number, any interference in such an order could be considered only on the limited ground of jurisdictional error and not otherwise. No such error is shown in the present case; and there was little justification that the Appellate Court at all chose to interfere in the order dated 15.09.2011. 17. For what has been discussed hereinabove, this Court is satisfied that the judgment and order as passed by the learned Judge, District Council Court on 23.03.2016 cannot be sustained. 18. Essentially, with the conclusion foregoing, this petition could have been disposed of but there remains another factor which is, per force, required to be taken into consideration and pronounced upon. For what has been discussed hereinabove, this Court is satisfied that the judgment and order as passed by the learned Judge, District Council Court on 23.03.2016 cannot be sustained. 18. Essentially, with the conclusion foregoing, this petition could have been disposed of but there remains another factor which is, per force, required to be taken into consideration and pronounced upon. As noticed, during pendency of the appeals against the order dated 15.09.2011, the present petitioners chose to file a fresh suit, being T.S. No. 8 of 2012 while suggesting, inter alia, that it had been a matter of fresh cause of action and that no finality was attached to the earlier suit i.e., T.S. No. 11 of 1993. It appears that while the matter remained pending in appeals against the order dated 15.09.2011, the petitioners entered into settlement with some of the defendants-appellants. However, some other, including the respondents herein, did not settle the matter as such but the said subsequent suit [No.8 of 2012] proceeded ex parte and was decreed on 17.02.2014. 19. In view of the subject matter of the dispute between the parties, this Court is clearly of the view that several questions were required to be considered before the said subsequent suit was finally disposed of ex parte, including the question of maintainability thereof. In view of the fact that unnecessary complications have arisen because of the impugned judgment and order dated 23.03.2016 as also the judgement and decree dated 17.02.2014, this Court is of the view that in the interest of justice, even when T.S. No. 11 of 1993 is restored to its number, the ex parte decree in T.S. No. 8 of 2012 be also annulled and both the suits be placed for merit consideration in accordance with law before the Subordinate Judge, District Council Court, Shillong. 20. Accordingly and in view of the above, this revision petition is allowed to the extent and in the manner that the impugned judgment and order dated 23.03.2016 is set aside and the order dated 15.09.2011 passed by the Subordinate Judge, District Council Court, Shillong restoring T.S. No. 11 of 1993 is approved. At the same time, the ex parte decree dated 17.02.2014, as passed in T.S. No. 8 of 2012 is annulled and the said suit is also restored to its number for analogous consideration with T.S. No. 11 of 1993. 21. At the same time, the ex parte decree dated 17.02.2014, as passed in T.S. No. 8 of 2012 is annulled and the said suit is also restored to its number for analogous consideration with T.S. No. 11 of 1993. 21. The record received in this matter be returned to the Court concerned forthwith. 22. The parties present before this Court, through their respective counsel, shall stand at notice to appear before the Subordinate District Council Court, Khasi Hills, Shillong in T.S. No. 11 of 1993 and T.S. No. 8 of 2012 on 30.06.2017. The Subordinate District Council Court shall ensure presence of all the parties in the matter and shall issue notice to the parties, who have not appeared in the present revision petition. The Subordinate District Council Court shall also take into consideration the effect of the order dated 19.09.2014 as passed by the District Council Court, Shillong in Misc. Civil Appeal No. 16 of 2011 and then, shall proceed in accordance with law. No costs.