On The Death of Hemendra Nath Sarma His Legal Heirs Smti Labanya Devi v. Dilip Kumar Sarma
2018-04-20
PRASANTA KUMAR DEKA
body2018
DigiLaw.ai
JUDGMENT : 1. Heard Mr. N. Dhar, learned counsel, appearing for the review petitioners and Mr. MK Choudhury, learned senior counsel, assisted by Mr. A. Barkataki, learned counsel for the respondents. 2. This review application has a chequered history. The present respondents as plaintiffs way back in the year 2005 preferred a title suit which subsequently was renumbered as T.S. No. 6/2008 for declaration of right, title and interest and confirmation of possession etc. against the present petitioners as the defendants. The said suit was dismissed on 22.9.2008. T.A. No. 33/2008 was filed by the respondents which was allowed by the learned Civil Judge, Barpeta. The present petitioners as the appellants filed RSA No. 109/20011 on 26.08.2009. The second appeal was filed alongwith the Misc. Case No. 1272/2010 for condonation of delay of 56 days in preferring the same. On 5.5.2010, the said petition was moved and notices were issued to the respondents. The said appeal alongwith the delay condonation petition was filed in total by 13 number of applicants who are the defendants in the suit. It would not be out of place to mention that signatures of the appellants other than the applicant No. 5 were disputed insofar as the signatures of the rest of the applicants are concerned in both the vokalatnama and the petition for delay condonation. Vide order dated 4.2.2011, in order to verify and to decide the genuineness of the signatures the lower court records of the suit including that of the first appellate court were called for, by special messenger. Vide order dated 9.3.2011, the records so called for were received and the matter was listed for hearing on the next date i.e. on 10.3.2011, but owing to absence of the counsel appearing on behalf of the appellants/applicants, the matter could not be taken up and thereafter the same was listed on 15.3.2011. 3. On 15.3.2011 the present respondents again raised a dispute with regard to genuineness of the signatures of the applicants other than the applicant Nos. 1 and 5. The applicant No. 5, Sri Mukul Sarma filed an affidavit- in- reply stating that the signatures of the other applicants were genuine. Accordingly other than the applicant Nos.
3. On 15.3.2011 the present respondents again raised a dispute with regard to genuineness of the signatures of the applicants other than the applicant Nos. 1 and 5. The applicant No. 5, Sri Mukul Sarma filed an affidavit- in- reply stating that the signatures of the other applicants were genuine. Accordingly other than the applicant Nos. 1 and 5 rest of the applicants were directed to file their individual affidavit supporting the fact as to whether they jointly filed the appeal and the application seeking condonation of delay as well as the vokalatnama. It was directed that such affidavit be sworn before the Oath Commissioner in the High Court within a period of 2 weeks. On 4.4.2011, it was brought to the notice of the court by the learned counsel appearing on behalf of the petitioners that as per direction dated 15.3.2011, the applicant Nos. 3, 7, 8, 9, 11, 12 and 13 sworn their respective affidavits and filed the same. However, applicant Nos. 2, 6 and 10 were yet to file the affidavit and applicant No. 4 being on election duty, he prayed some more time to file affidavit and the learned counsel sought for two weeks time. On the same date, it was also raised by the learned counsel appearing on behalf of the respondents that in the affidavit annexed to the delay condonation petition, it was mentioned that the petitioners were all by profession cultivators and from the submission of the learned counsel appearing on behalf of the petitioners, the applicant No. 4 was not a cultivator as he was on election duty. This court accordingly asked the applicant No. 4 to clarify in that aspect of the matter in the affidavit directed to be sworn by him. 4. Vide order dated 1.6.2011, the said delay condonation petition was dismissed citing the following reasons. (i) The applicant Nos. 2 and 4 had not sworn the affidavit as per the order dated 15.3.2011, rather the same were sworn through the Notary in the Sub-Divisional Court. (ii) The applicant Nos.
4. Vide order dated 1.6.2011, the said delay condonation petition was dismissed citing the following reasons. (i) The applicant Nos. 2 and 4 had not sworn the affidavit as per the order dated 15.3.2011, rather the same were sworn through the Notary in the Sub-Divisional Court. (ii) The applicant Nos. 6 and 10 did not file their affidavit as directed though an affidavit was filed on their behalf by the applicant No. 2 showing the ground of non filing the affidavit by them as the applicant No. 6 was not available as he had gone to Jorhat and the applicant No. 10 could not come as she is living in Sonitpur District. The said applicant Nos. 6, 7 and 11 did not contest before the first appellate court in T.A. No. 33/2008 but preferred the second appeal though they are debarred to challenge the instant appeal and the delay condonation application. (iii) The delay condonation petition was filed on 26.8.2009 and the medical certificate annexed thereto in support of the fact of illness of the applicant No. 1 is dated 25.2.2010 and there is no explanation as to how the said medical certificate was annexed in the petition filed on 26.8.2009. (iv) The second vokalatnama dated 19.2.2011 does not bear any token/ registration of the same by the office. (v) On the face of the submission that the applicants were cultivators, the applicant No. 1 is leading a retired life, the applicant No. 2 is house wife and applicant Nos. 3 and 4 are the lecturers of colleges at Guwahati and Barpeta respectively, the applicant Nos. 5 and 6 are unemployed, the applicant Nos. 7 to 12 are house wives and applicant No. 13 is employed in a nursing home. 5. This court considering the aforesaid facts supported by the affidavit came to the conclusion that a talk of compromise between the parties which is taken as one of the grounds for condonation of delay is false and not bonafide. The other ground that the applicant No. 1 is a patient suffering from cancer and taking steps was not accepted as the said applicant No. 1 in his deposition as DW 1 in the suit stated that he authorized applicant No. 5 to look after the case as he found difficulty in coming to the court.
The other ground that the applicant No. 1 is a patient suffering from cancer and taking steps was not accepted as the said applicant No. 1 in his deposition as DW 1 in the suit stated that he authorized applicant No. 5 to look after the case as he found difficulty in coming to the court. In addition to that leaving aside the applicant No. 1, there are other applicants who could take steps and finally it was held that there was lack of due diligence on the part of the applicants in filing the delay condonation petition and the same was rejected vide order dated 1.6.2011 which led to dismissal of the connected second appeal. 6. The applicant thereafter preferred SLP No. 24599/2011 before the Honble Apex Court which was dismissed on 19.9.2011 with a liberty to the present applicants to file review petition against the order dated 1.6.2011. While passing the said order by the Honble Apex Court, it was specifically mentioned in the order that the review application should be considered on its own merit. 7. The review application was filed which was registered as MC No. 3335/2011. The said application was filed without any delay condonation petition and did not disclose any ground for review nor there was any ground of error apparent on the face of record and as such the same was withdrawn, however, without any liberty to file a fresh review application. Vide order dated 1.2.2012, the petition was withdrawn and the review petition was dismissed. On 13.3.2012, the second review petition was filed vide Sl No. 17429. On 23-7-2012, the review petition was found to be defective and notices were issued to remove the said defects. Owing to non-compliance of the same, it must have been destroyed by the Registry. 8. The third review application was filed alongwith the delay condonation petition which was registered as Misc. Case No. 1757/2013 seeking condonation of delay of 227 days in filing the review application. Owing to the delay the review application was not registered. Vide order dated 20.08.2013, the delay condonation petition was dismissed. While dismissing the same, this court considered the fact that successive review applications are not permitted under the law. 9.
Case No. 1757/2013 seeking condonation of delay of 227 days in filing the review application. Owing to the delay the review application was not registered. Vide order dated 20.08.2013, the delay condonation petition was dismissed. While dismissing the same, this court considered the fact that successive review applications are not permitted under the law. 9. The present applicants again preferred SLP No. 37301/2013 and vide order dated 18.1.2016, the Honble Apex Court allowed the Civil Appeal No. 368/2016 thereby setting aside the order dated 20.08.2013 referred hereinabove and remanded the matter to the High Court to condone the delay and consider the review petition to recall the order dismissing the RSA and hear the second appeal and dispose of the case in accordance with the law within 6 (six) months from the date of receipt of the copy of this order. Thereafter, the present review petition against the rejection of delay condonation petition in Misc. Case No. 1272/2010 vide order dated 1.6.2011 was filed which is taken up for disposal. 10. Mr. Dhar, learned counsel appearing on behalf of the petitioners submits that there was delay of 56 days in filing the connected second appeal. The said delay condonation petition was filed by 13 numbers of applicants who preferred the connected second appeal. The affidavit was sworn by one Mukul Sarma. The grounds for condonation of the said delay are as follows: (i) A talk of compromise was going on between the parties even till the date of filing of the second appeal. (ii) The applicant No. 1 Hemendra Nath Sarma was suffering from cancer who was taking steps in the suit filed by the respondents. The said Hemendra Nath Sarma i.e. the present petitioner No. 1 was under treatment at Dr. B. Baruah Cancer Institute and he was aged about 69 years. (iii) As there was intervention of other members of the family of both sides and tried to arrive at a compromise, the delay took place in preferring the connected second appeal. Mentioning the aforesaid grounds, the present petitioners sought for condoning the delay of 56 days in preferring the connected second appeal. 11. The respondents filed their objection. In the said objection the respondents raised that the connected Vokalatnama was signed originally by the applicant Nos. 1 and 5 only. Later on another Vokalatnama was filed on 19.2.2010 wherein the aforesaid applicant Nos.
11. The respondents filed their objection. In the said objection the respondents raised that the connected Vokalatnama was signed originally by the applicant Nos. 1 and 5 only. Later on another Vokalatnama was filed on 19.2.2010 wherein the aforesaid applicant Nos. 1 and 5 had put their signatures in Assamese and the rest of the signatures in the subsequent Vokalatnama of the remaining 11 numbers of applicants were forged by the applicant No. 5. It was further contended that the said 11 numbers of the applicants did not put their signatures in the Vokalatnama filed on 19.02.2010. Avocation showing the applicants as cultivators by profession in the affidavit were misleading and submitted that the applicant No. 1 is retired service holder, applicant No. 2 is a housewife, the applicant Nos. 3 and 4 are lecturers in colleges at Guwahati and at Barpeta, the applicant Nos. 5 and 6 are unemployed youth and rest of the applicant Nos. 7 to 12 are all housewives living at various places alongwith their husbands. The applicant No. 3 is employed in the nursing home. The alleged talk of compromise was specifically denied by the respondents. Some of the applicants did not contest in the Title Appeal No. 33/08 preferred by the present respondents who are plaintiffs. Subsequent thereto the said persons who did not contest in the first appeal under no circumstances would come to file second appeal, as such the respondents took the plea relating to the forgery of signatures. On the basis of the said objections raised by the present respondents in the condonation petition, this court directed the applicants to file their respective affidavits in support of the fact that they have preferred the second appeal and signed the Vokalatnama as referred hereinabove and leaving a few, some of the petitioners complied. However, this court rejected the said delay condonation petition vide order dated 01.06.2011. Amongst the various grounds of rejection, Mr. Dhar points out that the medical certificate of applicant No. 1 was dated 25.02.2010 and the delay condonation petition was filed on 26.08.2009 which the court points out as to how the certificate dated 25.02.2010 was annexed in the delay condonation petition filed on 26.08.2009. 12. It is submitted that there is no dispute that the applicant No. 1 is suffering from cancer and the certificate issued by the Cancer Institute is an authentic document.
12. It is submitted that there is no dispute that the applicant No. 1 is suffering from cancer and the certificate issued by the Cancer Institute is an authentic document. Accordingly, findings arrived at while rejecting the delay condonation petition be reviewed. Order 47 CPC mandates that the jurisdiction of review can be invoked for any other sufficient reasons leaving aside those specifically mentioned under Order 47 Rule 1 of the CPC. It is also submitted that while disposing of a petition under Section 5 of the Limitation Act, 1963 it is the sufficient cause/ causes which are to be looked into by the court and the purpose of the said Section 5 of the Limitation Act is for advancement of substantial justice. It is further submitted that for condonation of delay, the discretion of the court is to be exercised liberally. Mr. Dhar also submits that the words "sufficient reasons as stipulated in Order 47 Rule 1 CPC includes the misconception of fact or law both by the court and even by an advocate. Referring (2000) 6 SCC 224 (Lily Thomas and ors Vs. Union of India and ors) Mr. Dhar submits that any wrong order passed by a court on misconception of rules or procedures can very well be reviewed within the ambit and scope of Order 47 Rule 1 of the CPC. Accordingly, he submits that the review application be allowed. 13. Mr. Choudhury, learned Senior counsel appearing on behalf of the respondents submits that the delay condonation petition filed by the applicants is vitiated by fraud. From the review application filed by the applicants, they failed to show that there is any error apparent on the face of record in the order under review. Moreover, the form in the manner under which the review application is filed does not conform to the rules prescribed by this High Court. Successive review applications cannot be filed nor the same be entertained by any court. Pointing out to the findings of this court in the order dated 01.06.2011, Mr. Choudhury submits that some of the applicants failed to abide by the direction of this court and did not file affidavit in support of the claim that they preferred the connected second appeal alongwith the delay condonation petition. They failed to show that there was talk of compromise between the parties to the suit.
Choudhury submits that some of the applicants failed to abide by the direction of this court and did not file affidavit in support of the claim that they preferred the connected second appeal alongwith the delay condonation petition. They failed to show that there was talk of compromise between the parties to the suit. The medical certificate dated 25.02.2010 under no circumstances can be taken into consideration in an application filed on 26.08.2009 and annexed to it. There is no explanation as to how the said subsequent medical certificate was annexed to the petition which was filed on 26.08.2009. The grounds submitted by the applicants for review does not fall within the four corners of the Order 47 Rule 1 of the CPC. Accordingly he sought for dismissal of the application. 14. Considered the submission of the learned counsels. In Lily Thomas and Ors (Supra) the Honble Apex Court held that the power of review is not an inherent power. It must be acquired by necessary application. The review is not an appeal in disguise. However, it was held if the court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in a miscarriage of justice, under such circumstances, nothing would preclude the court from reviewing the error. 15. The grounds for review as apparent from the application are as follows:- (i) There was no defect in filing Vokalatnama and as such the allegation of forgery made by the respondents are baseless. There was no error apparent on the face of record. (ii) There was a talk of compromise in between the defendant/ applicant No. 5 and the plaintiff/ respondent No. 5 and for the first time the proposal of compromise was from the respondent/plaintiffs side. As per the direction of the court, the rest of the defendants/ applicants filed affidavit swearing that the vokalatnama filed is not forged which is on record and as such order is to be reviewed. (iii) The certificate dated 25.02.2010 issued by the Cancer Institute was having a typographical mistake and as such subsequent medical certificate dated 24.11.2011 is submitted in support of the fact that the applicant No. 1 was undergoing treatment in the cancer institute.
(iii) The certificate dated 25.02.2010 issued by the Cancer Institute was having a typographical mistake and as such subsequent medical certificate dated 24.11.2011 is submitted in support of the fact that the applicant No. 1 was undergoing treatment in the cancer institute. From the aforesaid grounds it can be concluded that nothing of the sort of error apparent could be pointed out by the review petitioners. In order to overcome as to how medical certificate dated 25.02.2010 was annexed in an application filed on 26.08.2009 the petitioners brought a medical certificate dated 24.11.2011 on record in the review petition purportedly in order to show the continuity of the disease even after dismissal of the delay condonation petition on 1.6.2011. 16. It is difficult to conclude against which finding of the court the petitioners sought for invoking the jurisdiction under Section 114 of the CPC. The delay condonation petition was rejected vide order dated 01.06.2011 holding that there was lack of due diligence on the part of the applicant in pressing the delay condonation petition in preferring the appeal and accordingly the application was rejected. If at all the certificate annexed in the delay condonation petition recorded any wrong date the same could have been corrected by submitting a rectified copy before disposal of the said petition. Now while exercising the review jurisdiction, I am afraid, as to whether anything beyond the record in the delay condonation petition which was dismissed can be considered. Such consideration of the subsequent document/ certificate dated 24.11.2011 annexed to the review petition would amount going beyond the scope of review. To my opinion scope of review must be confined with respect to the materials on record just prior to passing of the order under review. The respondent raised objections against the certificate dated 25.02.2010 annexed in the delay condonation petition filed on 26.08.2009. The petitioners could have sought for leave to introduce a corrected copy of the certificate and even thereafter if the same was not considered then it would have been a separate issue. Nor it is the case of the petitioners that even after due diligence they could not obtain the certificate showing correct date.
The petitioners could have sought for leave to introduce a corrected copy of the certificate and even thereafter if the same was not considered then it would have been a separate issue. Nor it is the case of the petitioners that even after due diligence they could not obtain the certificate showing correct date. Acceptance of a document beyond the records without there being any explanation for not filing the said application when the objection was raised by the respondents and any inference drawn relying such document that the fact of sufferance of petitioner No. 1 from cancer is proved, in my opinion would not fall within the ground "any other sufficient reason" for review as stipulated in Order 47 Rule 1 of the CPC. 17. Further non-consideration of talk of compromise by the litigants cannot be considered in the factual matrix of the pleadings of the parties inasmuch as the respondents had denied the same. It is the admitted position that some of the applicants/ petitioners did not comply the direction of the court to swear affidavit supporting the fact that they had filed the appeal alongwith the delay condonation petition. While rejecting the delay condonation petition it is held that there are more than one petitioner preferring the appeal and the delay condonation petition, and if the petitioner No. 1 was suffering from cancer anyone from rest of 12 number of petitioners could have filed the appeal on time. Such explanations are not mentioned in the delay condonation petition why the rest of the petitioners could not file the appeal on time. On the face of the said findings, it was held that the petitioners failed to show their due diligence in preferring the delay condonation petition. There is no scope to review the said finding in view of the materials on record. 18. From the discussions made hereinabove and the grounds raised in the review application, the order dated 01.06.2011 holding that the causes shown in the condonation petition were not sufficient for condoning the delay of the 56 days in my opinion is proper, keeping in view the pleadings in the delay condonation petition of the petitioners.
18. From the discussions made hereinabove and the grounds raised in the review application, the order dated 01.06.2011 holding that the causes shown in the condonation petition were not sufficient for condoning the delay of the 56 days in my opinion is proper, keeping in view the pleadings in the delay condonation petition of the petitioners. Accordingly I do not find any merit in the review application and the grounds raised for review of the order of dismissal of delay condonation petition vide order dated 1.6.2011 in my opinion, are not sufficient to invoke the jurisdiction of review as stipulated under Section 114 of CPC and the petition is dismissed.