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2019 DIGILAW 42 (MAN)

Lohrii Athia v. Moirangthem Tombi

2019-07-08

M.V.MURALIDARAN

body2019
JUDGMENT : M.V. Muralidaran, J. 1. These petitions have been filed by the petitioners seeking to condone the delay of 251 days in Filing the appeals against the order dated 03.5.2017 passed in O.S. Nos. 26, 27 and 28 of 2017 on the file of the Civil Judge (Senior Division), Imphal West. 2. The petitioners are plaintiffs and the respondent is the defendant in O.S. Nos. 26, 27 and 28 of 2017 on the file of the Learned Civil Judge (Senior Division), Imphal West. The plaintiffs have filed the suit for recovery of a sum of Rs. 7.00 lakh each with interest at the rate of 12% per annum from 14.03.2015 and for costs respectively. By the judgment and decree dated 03.05.2017, the suits were dismissed at the admission stage. Challenging the said judgment, the petitioners have filed appeals with a delay of 251 days. 3. In the petitions seeking to condone the delay, the petitioners averred that though plaints were presented before the Civil Judge (Senior Division), Imphal West, on 01.4.2017, the same could not be moved for admission for one reason or the other because of non-availability of the Presiding Officer of the Court on regular basis or of the heavy engagement of the Judge in various other day-to-day Court works and later on, the plaints were moved on 28.04.2017 for admission and for issue of summons to the respondent/defendant. It is averred that the learned Civil Judge reserved the suit for orders for some weeks and no summons were issued to the defendant. However, on 03.5.2017, the learned Civil Judge dismissed the suit with an observation that the case of the plaintiffs as pleaded in the plaints is barred by Section 23(f) of the Indian Contract Act, 1872. 4. According to the petitioners, they are poor members of Schedule Tribe Community living in interior hill village at Lower Sajouba Village, Tadubi of Senapati District. The petitioners were under the bona fide impression and belief of their suits being proceeded with on trial of the facts pleaded and they never expected of their suits being dismissed in limine without calling upon the defendant to appear in the Court and to contest the suits on merit. The petitioners were under the bona fide impression and belief of their suits being proceeded with on trial of the facts pleaded and they never expected of their suits being dismissed in limine without calling upon the defendant to appear in the Court and to contest the suits on merit. According to the petitioners, despite best efforts of their counsel for giving the information of dismissal of their suits, their counsel could not get proper chance to give the information effectively and that the petitioners could not contact their counsel well in time about the progress of the suits except once or twice before hearing of the suits for admission. Under these circumstances, a delay of 251 days occurred in filing the appeals. According to the petitioners, the delay is neither wilful nor wanton. 5. Denying the averments in the petitions, the respondent filed affidavit in opposition stating that the defendant never collected Rs. 7.00 lakhs from the petitioners as alleged by them in the plaints. It is stated that the grounds of delay made by the petitioners are against the provisions of law and the delay of 251 days in filing the appeals has not been properly explained. Hence, prayed for dismissal of the petitions. 6. Assailing the order of the learned Civil Judge, the learned counsel for the petitioners submitted that the petitioners were not aware of the decree and judgment dated 03.05.2017 passed in the suits and the learned Civil Judge, without issuing summons to the defendant, at the admission stage itself, dismissed the suits. The learned counsel further submitted that though the judgment was passed on 03.05.2017, the counsel on record for the petitioners has not informed the same to the petitioners and hence, there is a delay of 251 days in filing the appeals. The learned counsel argued that the delay is neither wilful nor wanton and if the delay is condoned, no prejudice would be caused and, on the other hand, if the delay is not condoned, the petitioners would be put to irreparable loss and damage. 7. Per contra, the learned counsel for the respondent submitted that the petitioners have failed to explain each and every day's delay of 251 days in filing the appeals and the explanation offered by the petitioners is not convincing. 7. Per contra, the learned counsel for the respondent submitted that the petitioners have failed to explain each and every day's delay of 251 days in filing the appeals and the explanation offered by the petitioners is not convincing. In support, the learned counsel for the respondent relied upon the decision of the Hon'ble Supreme Court in Postmaster General and others v. Living Media India Limited and another, reported in (2012) 3 SCC 563 . 8. I have considered the submissions made by the learned counsel on either side and also perused the materials available on record, including the order passed by the Court below. 9. The grievance of the petitioners is that as against the dismissal of the suits filed by them, they have preferred appeals with a delay of 251 days. According to the petitioners, the learned Civil Judge, without issuing summons to the respondent, dismissed the suits at the admission stage itself and such an approach adopted by the learned Civil Judge is unacceptable and the petitioners have got good case in the appeals. The petitioners further contended that their counsel has not informed about the dismissal of the suits to them and also they could not contact their counsel well in time to know about the progress of the suits. Hence, there is a delay of 251 days in filing the appeals. 10. The petitioners have filed the suit for recovery of a sum of Rs. 7.00 lakhs from the respondent respectively. On a perusal of the typed set of papers, it is seen that the suits viz., O.S. Nos. 26, 27 and 28 of 2017 came be dismissed by the learned Civil Judge on 03.05.2017 after hearing the learned counsel for the petitioners at the admission stage itself. It is also seen that before issuing summons to the respondent, the learned Civil Judge, considered the claim of the petitioners and dismissed the suits holding that the suits filed by the petitioners deserved to be dismissed, since the contract in the present case attracts Section 23(f) of the Indian Contract Act, 1872. 11. According to the petitioners, they came to know about the judgment passed in the suits only on 15.04.2018 and immediately, they have engaged a counsel and filed appeals with a delay of 251 days. 11. According to the petitioners, they came to know about the judgment passed in the suits only on 15.04.2018 and immediately, they have engaged a counsel and filed appeals with a delay of 251 days. The ground on which the petitioners are seeking condonation is their counsel has not informed the stage of the proceedings to them and the petitioners could not contact their counsel well in time. Admittedly, the petitioners are residing in a far off interior part of a hill village in Senapati District and the said fact has not been denied by the respondent. It is seen that honestly, the petitioners admitted that they could not contact their counsel well in time about the progress/result of the suits. 12. According to the respondent, the petitioners have not explained each and every day's delay and, therefore, the petitions are liable to be dismissed. On the other hand, it is the say of the petitioners that the petitioners have shown sufficient cause for the delay and, therefore, the delay of 251 days may be condoned. 13. What constitutes "sufficient cause" cannot be laid down by hard and fast rules. In New India Insurance Co. Ltd. v. Shanti Misra, reported in (1975) 2 SCC 840 , the Hon'ble Supreme Court held that discretion given under Section 5 of the Limitation Act should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause" should receive a liberal construction. 14. In Brij Indar Singh v. Kanshi Ram, reported in AIR 1917 PC 156 , it was observed that true guide for a Court to exercise the discretion under Section 5 of the Limitation Act is whether the appellant acted with reasonable diligence in prosecuting the appeal. 15. In Shakuntala Devi Jain v. Kuntal Kumari, reported in 1969 (1) SCR 1006 , a Bench of three Judges of the Hon'ble Supreme Court held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 of the Limitation Act is proved, the application must not be thrown out or any delay cannot be refused to be condoned. 16. 16. In N. Balakrishnan v. M. Krishnamurthy, reported in (1998) 7 SCC 123 , the Hon'ble Supreme Court held that Section 5 of the Limitation Act is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the Court has to go in the position of the person concerned and to find out if the delay can be said to have resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case as sufficient. Although no special indulgence can be shown to the Government which, in similar circumstances, is not shown to an individual suitor, one cannot but take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheels. 17. It is settled position that unless there is evidence of culpable negligence or Iaches, from which inference can be drawn that the parties are adopting dilatory tactics, the explanation offered by the petitioner is to be liberally construed. 18. The Hon'ble Supreme Court considered 'sufficient cause' in the case of Perumon Bhagvathy Devaswom Perinadu Village v. Bhargavi Amma (dead) by LRs & Ors., reported in 2008 AIR SCW 6025. In Paragraph 8, the Hon'ble Supreme Court held: "8. The principles applicable in considering applications for setting aside abatement may thus be summarized as follows: (i) The words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words 'sufficient cause' in section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bonafides, deliberate inaction or negligence on the part of the appellant. (ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement. (iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation. (iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more Leniently than applications relating to Litigant's lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refiling the appeal after rectification of defects. (v) Want of 'diligence' or 'inaction' can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal. " 19. In Postmaster General, supra, relied on by the learned counsel for the respondent, the Hon'ble Supreme Court observed that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice. Since the Department, which had filed the petition to condone the delay has failed to give proper and acceptable explanation, the Hon'ble Supreme Court dismissed the appeals preferred by the Department. 20. In Executive Officer, Antiyur Town Panchayat v. L. Arumugam (dead) by legal representatives, reported in (2015) 3 SCC 569 , the Hon'ble Supreme Court held: "4. Since the Department, which had filed the petition to condone the delay has failed to give proper and acceptable explanation, the Hon'ble Supreme Court dismissed the appeals preferred by the Department. 20. In Executive Officer, Antiyur Town Panchayat v. L. Arumugam (dead) by legal representatives, reported in (2015) 3 SCC 569 , the Hon'ble Supreme Court held: "4. As held by this Court in State of Nagaland v. Lipok Ao, (2005) 3 SCC 752 , the court must always take a justice-oriented approach while considering an application for condonation of delay. If the court is convinced that there had been an attempt on the part of the government officials or public servants to defeat justice by causing delay, the court, in view of the larger public interest, should take a lenient view in such situations, condone the delay, howsoever huge may be the delay, and have the matter decided on merits. " 21. In view of the observations made by the Hon'ble Supreme Court, the reason which has been canvassed by petitioners for condonation of delay in filing appeals that delay occurred is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on part of them is reasonable. The words "sufficient cause" should receive a liberal interpretation so as to advance substantial justice. While giving liberal approach to an application made under Section 5 of the Limitation Act, the merits of the case should also be looked into. While that being so, when this Court had taken a view that the petitioners may have arguable points in the appeals and the reasons assigned also seem to be sufficient cause for condoning the delay, the observations in the decision cited by the respondent may not be of much help to him. 22. In N. Balakrishnan, supra, the Hon'ble Supreme Court held: "Condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limited. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other case, delay of a very long range can be condoned as the explanation thereof is satisfactory. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other case, delay of a very long range can be condoned as the explanation thereof is satisfactory. In every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the Court should lean against acceptance of the explanation. A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. The words "sufficient case" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice." 23. On a careful understanding of the aforesaid decision of the Hon'ble Supreme Court, this Court could see that the sufficient cause as explained in Section 5 of the Limitation Act should receive a liberal construction so as to advance a substantial justice when no negligence or inaction or want of bona fide is imputable to a party claiming condonation. 24. In Civil Appeal Nos. 2599-2600 of 2018, dated 08.03.2018 (Ummer v. Pottengal Subida and others), the Hon'ble Supreme Court held: "17. In the light of the aforementioned undisputed facts, in our opinion, the High Court should have taken liberal view in the matter and held the cause shown by the appellant as "sufficient cause" within the meaning of Section 5 of the Limitation Act and accordingly should have condoned the delay in filing the appeal. 18. One cannot now dispute the legal proposition that the earlier view of this Court that the appellant was required to explain the delay of each day till the date of filing the appeal has since been diluted by the later decisions of this Court and is, therefore, held as no longer good in law. 19. 18. One cannot now dispute the legal proposition that the earlier view of this Court that the appellant was required to explain the delay of each day till the date of filing the appeal has since been diluted by the later decisions of this Court and is, therefore, held as no longer good in law. 19. In our considered opinion, having regard to the totality of the facts and circumstances of the case and the cause shown by the appellant, which is duly proved by the documents, we are inclined to hold that the cause shown by the appellant for condoning the delay in filing the appeal before the High Court was/is a sufficient cause within the meaning of Section 5 of the Limitation Act and, therefore, the application filed by the appellant for condonation of delay of 554 days in filing the appeal deserves to be condoned. It is accordingly condoned but it is subject to the condition that the appellant shall pay cost of Rs. 10,000/- to respondent No. 1." 25. This Court is conscious of the fact that by condonation of delay some prejudice and/or inconvenience would be caused to the respondent. However, in the light of the decision of the Hon'ble Supreme Court in M.K. Prasad v. P. Arumogam, reported in (2001) 6 SCC 176 , such an inconvenience caused to the respondent can be compensated by awarding appropriate cost. 26. After considering the materials available on record and after considering the explanation offered by the petitioners and also going through the averments made in the petitions for condonation of delay, this Court is of the view that the facts stated in the petitions do constitute sufficient cause for condoning the delay of 251 days in filing the appeals. Accordingly, the delay of 251 days in filing the appeals is condoned, however, subject to the payment of cost to the respondent. 27. In the result, the petitions are allowed on payment of cost of Rs. 500 (Rupees Five Hundred) in each petitions to the respondent within a period of fifteen days from the date of receipt of a copy of this order. In the event, the cost of Rs. 500/- each is not paid and/or deposited within the time stipulated above, the petitions shall stand dismissed. If the cost is paid and receipts are produced, the Registry is directed to proceed further.