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2019 DIGILAW 44 (MAN)

Yumnam Bheigya Singh v. Soubam Debajit Singh

2019-07-19

RAMALINGAM SUDHAKAR

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ORDER : Ramalingam Sudhakar, J. Heard Mr. K. Achouba, learned counsel appearing for the petitioner and Mr. A. Golly, learned counsel appearing for the respondents. 2. The Civil Revision Petition has been filed under Section 115 of CPC to set aside the order in Judl. Misc. Case No. 191 of 2010 renumbered as Judl. Misc. Case No. 73 of 2012. The present petitioner is the judgment debtor. The respondent filed a suit for recovery of money under Order XXXVII of the CPC and in that the suit summon was served on the petitioner/defendant and vakalatnama was filed on 27 Oct., 2006 and the advocate appeared on the next hearing on 11.01.2007. 3. Thereafter, the case was taken up for hearing and the advocate who appeared for the present petitioner/defendant failed to appear before the Court, as a result of which, the defendant was set ex parte on 18.01.2007 and thereafter, the ex parte decree was passed on 19.03.2007 and further, steps were taken for execution of the decree. Thereafter, on 13.09.2010, an application was filed under Section 5 of the Limitation Act read with Section 151 of the CPC in Judl. Misc. Case No. 191 of 2012 to set aside the ex parte decree dated 19.3.2007 passed in Money Suit No. 4 of 2006. 4. It is pertinent to point out that in paragraph No. 1, of that application the petitioner has clearly stated that on receiving the summon, he engaged one advocate S. Dhabaljit Singh and he filed vakalatnama and appeared before the Court but thereafter, it appears that the counsel failed to appear and conduct the case and therefore, decree was passed ex parte on 19.03.2007. This is a statement made by the petitioner in paras 1 & 2 of the affidavit. In para 3, the petitioner states that after receiving summons for the Execution Case No. 1 of 2007, he again contacted his counsel and the counsel assured him that he will appear and defend the case. From this, it is evident that all along, petitioner has been blaming the counsel with no material. However, no affidavit from the counsel is forthcoming to justify the reason for non- appearance. The petitioner has not even complained against his counsel for non appearance before the Court. 5. From this, it is evident that all along, petitioner has been blaming the counsel with no material. However, no affidavit from the counsel is forthcoming to justify the reason for non- appearance. The petitioner has not even complained against his counsel for non appearance before the Court. 5. In paragraph 4, the petitioner further states that for 2 years, the matter was pending before the Lok Adalat i.e. from December 2007 to April 2010. This statement establishes that even during the period after the ex parte decree was passed, the Petitioner/Defendant had knowledge as to where the case was pending. If that be the case, he has to explain the delay from the date of ex parte decree till the date of filing of the application i.e. (from 19.03.2007 till 13.09.2010). By stretch of imagination, it can be said that the delay is 175 days only. 6. The statement made by the petitioner that from the date of the notice in the execution proceedings only, he came to know of the case, is untenable contention because, the statement in the application is that the petitioner has received summons, he has entered appearance through the counsel. If that be the case, the explanation for delay should be from the date of absence and the ex parte decree and not from the date of the subsequent notice in the execution case. In any event, the delay has not been properly explained except throwing the blame on the Advocate for which there is no supporting material or affidavit. There is no complaint against the Advocate before the statutory body. 7. In this regard, it is useful to refer to the case of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and others reported in, (2013) 12 SCC 649 : (2013 AIR SCW 6158, para 15) where the Hon'ble Apex Court has set out parameter of considering delay. Relevant para 21 reads as follows: "21. From the aforesaid authorities the principles that can broadly be culled out are: 21.1 (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. Relevant para 21 reads as follows: "21. From the aforesaid authorities the principles that can broadly be culled out are: 21.1 (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. 21.2 (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. 21.3 (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. 21.4 (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5 (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6 (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. 21.7 (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed to totally unfettered free play. 21.8 (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. 21.9 (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principal is that the courts-are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. 21.10 (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.10 (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11 (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. 21.12 (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. 21.13 (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude." 8. Tested on the parameters of the decision in Esha Bhattacharjee (2013 AIR SCW 6158) (supra), the petitioner in the present case, has not given proper explanation of his absence and the delay in filing the application. Having entered appearance through the counsel, there is no reason for him to plead that the failure on the part of the counsel to appear in the case is the sole ground for condonation of delay. The petitioner has not shown diligence or reasonable conduct in defending his case. 9. The learned counsel for the respondent also relied upon the case of Damodaran Pillai and others vs. South Indian Bank Ltd. reported in, (2005) 7 SCC 300 : ( AIR 2005 SC 3460 ) to plead that hardship is no ground for extending the period of limitation. Relevant para 21 reads as follows: 21. Hardship or injustice may be a relevant consideration in applying the principles of interpretation of the statute, but cannot be a ground for extending the period of limitation. Learned counsel for the respondent also relied upon Civil Appeal Nos. 9 to 28 of 1957; reported in AIR 1960 SC 260 . Relevant para 19 reads as follows: "19. The proviso with which we are concerned has prescribed the limitation of six months for the institution of the application itself, and so the principle laid down in Lingley's case 1921-1 KB 655 (supra), can have no application to the question 'which we have to decide. Indeed, the present proviso is in substance similar to the provision in S. 5 of the Limitation Act, and Mr. Indeed, the present proviso is in substance similar to the provision in S. 5 of the Limitation Act, and Mr. Phadke has fairly conceded that there is consensus of judicial opinion on the question of the construction of S. 5. It cannot be disputed that in dealing with the question of condoning delay under S. 5 of the Limitation Act the party has to satisfy the court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time, and this has always been understood to mean that the explanation has to cover the whole of the period of delay, Vide Ram Narain Joshi vs. Parmeswar Narain Mahta, DLR 30 Cal 309 (PC). Therefore the finding recorded by the authority that the appellants have failed to establish sufficient cause for their inaction between 2-5-1952, and the respective dates on which they filed their present applications is fatal to their claim. That is why we think it unnecessary to consider the larger question of law which Mr. Phadke sought to raise before us." 10. In the light of the above decisions, the petitioner has not make out a case to set aside the order of the Civil Judge Senior Division who rightly rejected the application on the ground that petitioner did not show diligence in defending the case. The explanation given for the delay is not satisfactory. Sufficient cause is not shown and it is a case of supine indifference. 11. Finding no merits, the civil revision petition stands dismissed.