Research › Search › Judgment

Gauhati High Court · body

2020 DIGILAW 648 (GAU)

H. Lallawmzuala H/o Lalramhmuaki v. Zoramthangi

2020-08-28

MICHAEL ZOTHANKHUMA

body2020
JUDGMENT Michael Zothankhuma, J. - Heard Mrs. Emily L. Chhangte, learned counsel for the applicants. Also heard Mr. B. Lalramenga, learned counsel for the sole respondent. 2. This is an application under Section 5 of the Limitation Act, 1963 praying for condonation of 457 days delay in preferring an appeal against the Judgment & Order dated 07.02.2018, passed by the learned Senior Civil Judge, Serchhip in Civil Suit Case No. 1/2016 wherein it was declared and decreed that the respondent is the rightful owner of the disputed land and also directed the applicants to vacate the same within 2 (two) months from the date of the judgment & order. 3. The applicants'' case in brief is that the applicants were living in a vacant land in Kanan Veng, Thenzawl since 2001. The applicants had been allowed to live on the land by the Village Council concerned, though the land had not been allotted to them by the Village Council. The respondent, on coming to know that some persons had illegally occupied her land in the year 2009, made a complaint to the authorities and Eviction Notice/Stay Order dated 25.08.2009 was served upon the respondent by the Government. The respondent thereafter filed Civil Suit No. 1/2016 against the applicants for a declaration that the land occupied by the applicants, which was covered by Agriculture LSC No. W-11/1994 belonged to the respondent and that the applicants should be evicted from the said land. 4. The Court of the Senior Civil Judge, Serchhip disposed of Civil Suit No. 1/2016 vide Judgment & Order dated 07.02.2018, declaring that the respondent was the rightful owner of the suit land covered by Agricultural LSC No. W-11/1994 and that the applicants were to vacate the land within 2 (two) months from the date of judgment & order. 5. The applicants'' counsel submits that after the impugned judgment & order was passed by the Trial Court on 07.02.2018, the applicants filed an application under Order 9 Rule 13 CPC for setting aside the impugned judgment & order, which was registered as CMA No. 3/2018. CMA No. 3/2018 was dismissed vide Order dated 07.06.2018. Consequent to the same, the applicants were at a loss as to how to proceed further. The applicants thereafter approached their present Counsel in the month of February, 2019 stating that they wanted to file an appeal. CMA No. 3/2018 was dismissed vide Order dated 07.06.2018. Consequent to the same, the applicants were at a loss as to how to proceed further. The applicants thereafter approached their present Counsel in the month of February, 2019 stating that they wanted to file an appeal. As the applicants were rustic villagers, having no knowledge about the technicalities of law and having financial difficulties, they could not approach a Counsel earlier than February, 2019. 6. The learned counsel for the applicants submits that a certified true copy of the impugned judgment & order was issued to the applicants on 14.06.2019, wherein it was found that as the judgment was not printed on folio paper, the same was not accepted by the Registry of this Court. The applicants thereafter had to obtain a fresh certified copy of the impugned judgment & order, which was issued only on 21.06.2019. As the same was again not printed on proper folio paper, the applicants had to obtain another certified true copy of the impugned judgment & order. 7. The applicants'' counsel also submits that another ground for the delay in filing the appeal was the time taken for drafting the appeal and the fact that the applicants'' counsel had gotten married on 14.11.2019. 8. Besides the above, the learned counsel for the applicants submits that the Trial Court did not give any opportunity to the applicants to state their case in the Trial Court. Further, the notice issued in the "Aizawl Post" newspaper by the Trial Court, did not have any circulation in Thenzawl Town, due to which the applicants did not receive any notice. The learned counsel also submits that the statements and documents of the respondent, on the basis of which he has claimed ownership of the land, cannot be said to be proved in the Trial Court as there was no corroborative evidence. The applicants'' counsel submits that unless the delay is condoned, there is likely to be grave miscarriage of justice. 9. Mr. B. Lalramenga, the learned counsel for the respondent, on the other hand, submits that the averments made by the applicants do not have any substance. The averments made by the applicants in their affidavits show that the applicants have approached their present counsel after a lapse of 7 (seven) months after CMA No. 3/2018 was dismissed. 9. Mr. B. Lalramenga, the learned counsel for the respondent, on the other hand, submits that the averments made by the applicants do not have any substance. The averments made by the applicants in their affidavits show that the applicants have approached their present counsel after a lapse of 7 (seven) months after CMA No. 3/2018 was dismissed. He also submits that the stand taken by the applicants that they are rustic villagers and do not know the technicalities of law is not sustainable, as they had filed an application under Order 9 Rule 13 CPC after the impugned judgment & order had been passed, which had been subsequently dismissed. He also submits that the applicants have not been diligent in pursuing the appeal and that they have made incorrect statements in their application, as the Letter dated 04.06.2020 issued by the Civil Judge, Serchhip District, (Annexure-2 in the written objection) clearly states that no application for obtaining certified true copy of the impugned judgment & order was found in the case record. He also submits that only the first page of the certified copy of the impugned judgment has been printed on folio paper and the rest has been printed in normal blank paper. As such, the applicants could not have incurred any delay while obtaining a corrected certified copy of the impugned judgment & order, as there is no corrected certified copy of the impugned judgment & order till date. He further submits that as there has been no day to day explanation for the delay, the application for condonation delay should be dismissed. 10. I have heard the learned counsels for the parties. 11. As can be seen from the averments made by the applicants'' counsel, the condonation of delay of 457 days has been made on the ground that the applicants being rustic villagers, who had no knowledge about the technicalities of law, in addition to having financial difficulties, were at a loss to proceed further, after their application under Order 9 Rule 13 CPC vide CMA No. 3/2018 had been dismissed vide Order dated 07.06.2018. The other ground for the delay is the time taken for obtaining the certified copy of the judgment printed on folio paper, as was required. The further ground taken is the time taken by the present counsel for the applicants in filing the appeal. The other ground for the delay is the time taken for obtaining the certified copy of the judgment printed on folio paper, as was required. The further ground taken is the time taken by the present counsel for the applicants in filing the appeal. As per the documents on record, it is seen that the applicants did not submit any application for obtaining the true copy of the impugned judgment & order dated 07.02.2018 passed in Civil Suit No. 1/2016, as per the Letter dated 04.06.2020 issued by the Civil Judge, Serchhip district. The said Letter dated 04.06.2020 issued by the Civil Judge, Serchhip district, which is an annexure to the written objection filed by the respondent, has not been denied or controverted by the applicants. The above gives rise to an inference that the applicants have given incorrect statements with regard to obtaining certified true copies of the impugned judgment & order. In the case of Pundlik Jalam Patil vs. Executive Engineer, Jalgaon Medium Project & Anr., (2008) 17 SCC 448 , the Apex Court has held that an incorrect statement made in the application seeking condonation of delay itself is sufficient ground to reject the application, without any further inquiry as to whether the averments made in the application reveal sufficient cause to condone the delay. 12. The other reason given by the applicants for the delay in filing the appeal is on the ground that they did not know how to proceed further after their application under Order 9 Rule 13 CPC for setting aside the impugned judgment & order, had been dismissed. The above ground cannot be accepted by this Court due to the fact that the impugned judgment & order not only shows that all the applicants were present in person before the Court on 28.10.2016, but the applicant Nos. 8, 11 & 12 were present before the Trial Court on 11.04.2017 also. Besides the above facts, the applicants filed their application under Order 9 Rule 13 CPC against the impugned judgment & order through a counsel. As such, the ground of the applicants being rustic villagers, not knowing the technicalities of law, is not acceptable to this Court. In any event, ignorance of law cannot be an excuse for not approaching the Court in time, especially when CMA No. 3/2018 had been dismissed on 07.06.2018, while the present application was filed only on 13.12.2019. As such, the ground of the applicants being rustic villagers, not knowing the technicalities of law, is not acceptable to this Court. In any event, ignorance of law cannot be an excuse for not approaching the Court in time, especially when CMA No. 3/2018 had been dismissed on 07.06.2018, while the present application was filed only on 13.12.2019. 13. With regard to the applicants'' counsel submission that there is likely to be a grave miscarriage of justice if the delay is not condoned, this Court finds that the Apex Court in the case of O.P Kathpalia vs Lakhmir Singh & Ors., (1984) 4 SCC 66 had held that if refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. wxyz In the present case, though the applicants claim/right to the land is on the ground that they had been allowed to do so by the concerned Village Council, the applicants have not been able to show that they have been allotted the land as per law. No land certificate has been issued to the applicants by any authority in respect of the suit land, which they apparently occupied from the year 2001. However, the respondent has been issued Agricultural LSC No. W-11/1994 against the suit land by the Government of Mizoram in the year 1994. zyxw 14. With regard to the stand taken by the applicants that no notice was received by the applicants, as the notice issued in the "Aizawl Post" newspaper did not have any circulation in Thenzawl Town, it would be helpful if the extract of the impugned judgment & order, passed in Civil Suit No. 1/2016 and the extract of the Order dated 07.06.2018 passed in CMA No. 3/2018 are reproduced:- wxyz Judgment & Order in Civil Suit No. 1/2016 zyxw wxyz " .On 28.10.2016 all the defendants were present in person before the Court. And on Dt. 11.04.2017 the defendants No. 8, 11 and 12 are present without submitting Written Statement. Since then, they failed to appear before the court. Thereafter, summons to the defendants was published in The Aizawl Post News Paper Dt. 7th September, 2017 for appearance on 15.09.2017, but the defendants failed to appear before the court. And on Dt. 11.04.2017 the defendants No. 8, 11 and 12 are present without submitting Written Statement. Since then, they failed to appear before the court. Thereafter, summons to the defendants was published in The Aizawl Post News Paper Dt. 7th September, 2017 for appearance on 15.09.2017, but the defendants failed to appear before the court. Hence, exparte proceeding was drawn against the defendants..." zyxw wxyz Judgment & Order in CMA No. 3/2018 zyxw wxyz " .I have heard the parties and perused materials available in record. Counsel for the petitioner submitted that as the news paper Aizawl Post has no circulation in and around Thenzawl, the Aizawl Post news paper publication dated 7.9.2017 summoning the defendants have no relevant in this case. The counsel for the opposite party submitted that summons have been duly served and there is no infirmity in the order challenged in this petition " zyxw wxyz As the present petitioner have entered appearance in the Civil Suit No. 1 of 2016 on dated 28.10.2016 and 14.03.2017, they have knowledge that the suit was pending against them and as no appearance was made thereafter, exparte proceeding have been drawn against them and order was passed. Hence, I do not find any ground to allow this petition and the instant application is dismissed " zyxw 15. The contents of the above extracts of the judgment & orders clearly show that the applicants had knowledge of the suit before the Trial Court and had accordingly appeared before the Court. As such, it cannot be said that the applicants were never issued notice in respect of the Civil Suit. As the extracts of the above judgment & orders show that the applicants did not take part in the proceedings before the Trial Court despite being aware of the same, this Court finds that the averment made by the applicants'' counsel that there is likely to be a grave miscarriage of justice if delay is not condoned is not acceptable to this Court. 16. This Court also finds that the applicants have not given proper explanation for the delay between July 2018 and 12.02.2019 when they approached the present counsel. The time taken between 12.02.2019 and the filing of the present appeal on 13.12.2019 has also not been properly explained. 17. 16. This Court also finds that the applicants have not given proper explanation for the delay between July 2018 and 12.02.2019 when they approached the present counsel. The time taken between 12.02.2019 and the filing of the present appeal on 13.12.2019 has also not been properly explained. 17. In view of the reasons stated above, this Court finds that sufficient cause for the delay has not been made out. The application for condonation of delay is accordingly dismissed.