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2021 DIGILAW 78 (GAU)

Saizami Sailo v. Hauthanga

2021-02-04

NELSON SAILO

body2021
JUDGMENT Nelson Sailo, J. - This Court vide Order dated 09.12.2020 observed that as no one appeared for the respondents despite service of notice, Court would proceed with the matter without waiting for the appearance of the respondents on the next Court date. Thereafter, the matter was listed again on 28.01.2021 on which date, a last chance was again given to the respondents to make their appearance in the matter and it was directed that the matter be listed again on 04.02.2021. That is how the matter is listed today. 2. Mr. Lalrokunga Pautu, learned counsel submits that he has been instructed by his senior, Mr. J.C. Lalnunsanga that they will be representing all the respondents and prays that he be given some time to file their power to appear for the respondents. However, considering the nature of the grievance and the issue involved, this Court is of the considered view that the matter can be proceeded with and that no prejudice would be caused to the respondents even if the matter is taken up for disposal. 3. Heard Mr. Jonathan L. Sailo, learned counsel for the petitioner, who submits that the petitioner by filing this Civil Revision Petition under Article 227 of the Constitution of India r/w Section 151 of the Code of Civil Procedure (CPC) prays for setting aside the impugned Order dated 26.08.2019 passed by the learned Addl. District & Sessions Judge, Aizawl in RFA No. 12/2019 arising out of Eviction Suit No. 2/2001. He also prays for setting aside the subsequent orders passed by the learned Court below after the filing of the instant Revision Petition as was brought on record vide affidavit filed on 22.07.2020 as permitted by this Court vide Order dated 04.06.2020. 4. The case of the petitioner briefly is that he had filed Eviction Suit No. 2/2001 seeking eviction of the defendants arrayed therein and who are the present respondents in this Civil Revision Petition. The Eviction Suit No. 2/2001 was disposed of in favour of the plaintiff by the Subordinate District Council Court (SDCC), Aizawl vide its Order dated 05.11.2011. The said Order is now challenged by the present respondents by filing RFA No. 12/2019 before the learned Additional District Judge, Aizawl. 5. Be it stated herein that in the Eviction Suit, there were only 17 defendants but in the RFA filed before the Court below, besides the original defendant Nos. The said Order is now challenged by the present respondents by filing RFA No. 12/2019 before the learned Additional District Judge, Aizawl. 5. Be it stated herein that in the Eviction Suit, there were only 17 defendants but in the RFA filed before the Court below, besides the original defendant Nos. 1 to 17 in the Eviction Suit, the respondent Nos. 18 to 32 in the instant revision petition were added as appellants. 6. The grievance of the petitioner is that the Court below vide Order dated 26.08.2019 passed in RFA No. 12/2019 stayed the Judgment & Decree passed by the SDCC, Aizawl in Eviction Suit No. 2/2001 dated 05.01.2011 and also the proceedings of Execution Case No. 31/2012 until further orders or till disposal of the appeal before the delay in filing the said appeal was first considered. 7. Mr. Jonathan L. Sailo, learned counsel submits that the respondents in fact has filed CMA No. 374/2019 under Section 5 of the Limitation Act, seeking condonation of delay of 3120 days in filing RFA No. 12/2019. Although the Court below issued notice to the Opposite Party in CMA No. 374/2019 on 26.08.2019 but at the same time, issued the impugned stay order in RFA No. 12/2019. 8. The learned counsel submits that Order 41 Rule 3 A of the CPC provides that when the appeal is presented after the expiry of the period of limitation, the Court shall not make an order for the stay of execution of the decree against which the appeal is preferred until and unless the application is decided in favour of the applicant/appellant. It is only then that the Court will proceed with the appeal and hear the parties on merits. In support of his submission, the learned counsel relies upon the following authorities:- (i). Mamuda Khateen and Others Vs. Beniyan Bibi and Others, (1976) AIR Calcutta 415 Full Bench. (ii). Chhitu Vs. Mathuralal and Others, (1981) AIR M.P. 13 and (iii). State of M.P. and Another Vs. Pradeep Kumar and Another, (2000) 7 SCC 372 . 9. The learned counsel further submits that this Court on 29.01.2020, while issuing notice to the respondents was pleased to pass an interim order directing that further proceedings in RFA No. 12/2019 pending before the Addl. District Judge, Aizawl shall remain stayed till further orders. State of M.P. and Another Vs. Pradeep Kumar and Another, (2000) 7 SCC 372 . 9. The learned counsel further submits that this Court on 29.01.2020, while issuing notice to the respondents was pleased to pass an interim order directing that further proceedings in RFA No. 12/2019 pending before the Addl. District Judge, Aizawl shall remain stayed till further orders. However, the Court below despite being informed about the interim order passed by this Court was pleased to pass Order dated 29.01.2020 fixing 06.02.2020 for hearing on exparte proceedings. Thereafter, on 06.02.2020, the Court below upon receiving the interim order passed by this Court adjourned the matter but fixed the matter for hearing on 09.03.2020. On 09.03.2020, the Court below closed the case temporarily till the final outcome of CRP No. 1/2020. 10. Before proceeding to consider the grievance of the petitioner with regard to the passing of the stay order prior to condoning the delay in filing the connected appeal, this Court would like to stress the fact that when the party concerned has informed the Court below that the High Court has passed an interim order staying further proceeding in the matter, the Court below ought not to have fixed a date for ex-parte proceedings and instead it should have asked the party concerned to produce a copy of the interim order. It should be kept in mind that Lawyers are the officers of the Court and submissions made by them should be given credence. 11. Now coming to the grievance projected by the petitioner, the question to be considered is as to whether the Court below could have passed a stay order pending condonation of the delay in filing the connected appeal. In this connection, it will be useful to reproduce Order 41 Rule 3 A of the CPC:- "3-A. Application for condonation of delay- (1) When an appeal is presented after the expiry of the period of limitation specified therefore, it shall be accompanied by an application supported by affidavit setting forth the fact on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period. (2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under rule 11 or rule 13, as the case may be. (3) Where an application has been made under sub-rule (1), the Court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under rule 11, decide to hear the appeal." 12. From the above abstract, it may be seen that when an appeal is presented after the expiry of the period of limitation, an application for condonation of delay supported by an affidavit has to be filed setting forth the facts, materials and reasons to satisfy the Court that the appeal could not be filed in time. Thereafter, if the Court sees no reason to reject the application without the issue of the notice to the respondents, notice shall then be issued and the matter decided before the Court proceeds to deal with the appeal. 13. The Indore Bench of the Madhya Pradesh High Court in Chhitu Vs. Mathuralal and Others (Supra) in respect of Order 41 Rule 3 A of the CPC held as follows:- "8. From the aforesaid object, it is clear that to give way to the practice of admitting the appeal, subject to the decision of question of limitation at the time of hearing, this Rule 3A was added. The rule has to be read bearing in mind this object of the legislature. 9. The governing expression in the sub-rule (2) "shall be finally decided by the court before it proceeds to deal with the appeal under Rule 11 or Rule 13, as the case may be" makes it imperative for the appellate court first to decide the question of limitation and puts an embargo on its (Court's) power to proceed further in the appeal. The appeal cannot be heard even on the question of admission much less on merits. In effect there is no appeal before the court unless the delay is condoned. This conclusion gets buttressed from the expression "the appeal is proposed to be filed". The appeal cannot be heard even on the question of admission much less on merits. In effect there is no appeal before the court unless the delay is condoned. This conclusion gets buttressed from the expression "the appeal is proposed to be filed". The use of this expression even in face of the fact that memorandum of appeal along with the application for condonation of delay is on record, clearly bears out the intention of the legislature that till the delay is not condoned, it cannot be treated in law that there is an appeal before the court." 14. Again the Full Bench of the Calcutta High Court in Mamuda Khateen and Others Vs. Beniyan Bibi and Others (Supra) on the same subject matter but in respect of Section 5 of the Limitation Act held as follows:- "7. It seems to us that when an appeal is barred by limitation and an application is made under Section 5 of the Limitation Act for condonation of the delay along with the memorandum of appeal, until the application under Section 5 is allowed the appeal cannot be filed or admitted at all. In other words, till a favorable order is made on the application under Section 5 the appeal is nonest." 15. The Apex Court in State of M.P. and Another Vs. Pradeep Kumar and Another (Supra) at para 19 of the said Judgment held as follows:- "19. The object of enacting Rule 3-A in Order 41 of the Code seems to be twofold. First is, to inform the appellant himself who filed a time-barred appeal that it would not be entertained unless it is accompanied by an application explaining the delay. Second is, to communicate to the respondent a message that it may not be necessary for him to get ready to meet the grounds taken up in the memorandum of appeal because the court has to deal with application for condonation of delay as a condition precedent. Barring the above objects, we cannot find out from the Rule that it is intended to operate as unremediably or irredeemably fatal against the appellant if the memorandum is not accompanied by any such application at the first instance. Barring the above objects, we cannot find out from the Rule that it is intended to operate as unremediably or irredeemably fatal against the appellant if the memorandum is not accompanied by any such application at the first instance. In our view, the deficiency is a curable defect, and if the required application is filed subsequently the appeal can be treated as presented in accordance with the requirement contained in Rule 3-A Order 41 of the Code. 20. In the result we allow this appeal and set aside the impugned judgment. The matter shall now go back to the High Court for disposal of the application to condone the delay in filing the second appeal. If the explanation was found satisfactory to the High Court the second appeal will have to be disposed of in accordance with law. This appeal is disposed of accordingly." 16. It is thus clear from the above abstracts that it is a condition precedent to deal with the application for condonation of delay before dealing with the appeal. In other words, only after the delay is condoned, the question of considering the appeal would arise. 17. For the aforesaid reasons, I find merit in the instant Revision Petition. Accordingly, the impugned Order dated 29.01.2020 and all the subsequent orders passed in RFA No. 12/2019 are hereby set aside. The parties shall now appear before the Court below on 25.02.2021 and the petitioner/opposite party in the appeal and the CMA before the Court below will file her objection on that day against the prayer of the appellant for condoning the delay of 3120 days in filing the appeal. The Court below shall then proceed to hear the condonation application by giving the parties due opportunity of hearing. Only after the condonation of delay of application is decided, will the Court below proceed to consider the appeal as may be warranted by the outcome of the CMA. 18. The Civil Revision Petition is accordingly disposed of.