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2022 DIGILAW 1141 (GAU)

Lalropuii v. Varthantluangi

2022-09-30

MARLI VANKUNG

body2022
JUDGMENT : 1. Heard Mr. Joseph LRenthlei, learned counsel for the petitioner as well as Mr. J.C Lalnunsanga, learned counsel for the respondent Nos. 1 & 2. 2. This is a petition submitted under Section 115 of the Code of Civil Procedure, 1908 read with Article 227 of the Constitution of India against the impugned order of the Ld. Senior Civil Judge dated 22.01.2020 in CMA No. 385/2018 arising out of Review Petition No. 14/2018 between Smt. Varthantluangi & Anr. vs. Smt. Lalropuii & Ors. 3. The petitioner’s case is that aggrieved by the Order dated 22.01.2020 in CMA No. 385/2018, arising out of Review Petition No. 14/2018 wherein, the Senior Civil Judge had condoned the delay of 305 days in filing the Review Petition No. 14/2018 by the respondent Nos. 1 & 2. 4. Brief facts of the case is that the respondent No. 1 filed a Civil Suit No. 111/2017 for ownership/entitlement over a plot of land in her favour on the strength of a sale deed. Thereafter, the respondents filed an application for withdrawal of the said Civil Suit No. 111/2017 with a liberty to file afresh on the same cause of action. 5. The Senior Civil Judge-II, however, passed the an order dated 05.10.2017 in CMA No. 526/2017 arising out of Civil Suit No. 111/2017 allowing the respondent to withdraw the suit Civil Suit, however, no liberty was given to file a fresh suit. Meanwhile, the petitioners had filed an Eviction Suit No. 13 of 2017 for eviction of the respondent No. 2 from the suit land, wherein the respondent No. 1 has filed an application for impleadment. Thereafter, the petitioner filed a Review Petition No. 14/2018, for review of the Order dated 05.10.2017 in CMA No. 526 of 2017 on 06.09.2018 and had also filed CMA No. 385/2018 arising out of the Review Petition No. 14/2018 for condoning the delay in filing the Review Petition. On 22.01.2020, the Senior Civil Judge passed the impugned order allowing the condonation of delay application and filing the Review Petition No. 14/2018. Being aggrieved by this Order dated 22.01.2020, the petitioners have now approached this Court for setting aside the order of the learned Senior Civil Judge-I in allowing the condonation of delay filed by the respondents 6. On 22.01.2020, the Senior Civil Judge passed the impugned order allowing the condonation of delay application and filing the Review Petition No. 14/2018. Being aggrieved by this Order dated 22.01.2020, the petitioners have now approached this Court for setting aside the order of the learned Senior Civil Judge-I in allowing the condonation of delay filed by the respondents 6. Mr Joseph L Renthlei, learned counsel for the petitioner submits that the learned Senior Civil Judge had erred in passing the impugned Judgment & Order dated 22.01.2020, condoning the delay of 305 days for the reason that the learned court was wrongly misinformed by the counsel for the respondents that there was understanding between the counsels when the Civil Suit No. 111/2017 was withdrawn, while the petitioner was not even aware of the Civil Suit No. 111/2017. 7. The learned counsel for the petitioner further submits that the learned Senior Civil Judge had noted in the impugned order dated 22.01.2020 that the petitioner became aware of the necessity for filing of the Review Petition only after the refusal to allow the impleadment of the applicant/respondents in Eviction Suit No. 13/2017. The learned counsel submits that this observation of the learned court, based on which condonation application was allowed, is not correct which is clear from the records. He submits that the impleadment application was not allowed in an order dated 19.11.2018 in Eviction Suit No.13/2017, whereas, the application for condonation was already filed in the month of April, 2018. Therefore, the reasons given by the learned Senior Civil Judge in allowing the condonation of delay, is not supported by the records.Moreover, even after the written objection to the impleadment application was filed, there was still a delay of 90 days for which there is no explanation given in thecondonation application. In support of his submissions, the learned counsel has cited the following cases:- (i) D. Gopinathan Pillai vs. State of Kerala &Anr., reported in (2007) 2 SCC 322 . (ii) Esha Bhattacharjee vs. Managing Committee of Reghunathpur Nafar Academy &Ors., reported in (2013) 12 SCC 649 , (iii) Shalini Shyam Shetty & Anr. vs. Rajendra Shankar Patil, reported in (2010) 8 SCC 329 . (iv) Ajay Singh &Anr.vs. State of Chhattisgarh &Anr., reported in (2017) 3 SCC 330 . 8. Mr. (ii) Esha Bhattacharjee vs. Managing Committee of Reghunathpur Nafar Academy &Ors., reported in (2013) 12 SCC 649 , (iii) Shalini Shyam Shetty & Anr. vs. Rajendra Shankar Patil, reported in (2010) 8 SCC 329 . (iv) Ajay Singh &Anr.vs. State of Chhattisgarh &Anr., reported in (2017) 3 SCC 330 . 8. Mr. J.C Lalnunsanga, learned counsel for the opposite party, on the other hand, submits that they have a good case in the instant suit and they did not need to give any day-to-day explanation in explaining the delay of 305 days. He submits that if the condonation is not allowed, she will be suffering irreparable loss if the suit land in question is taken up without her being made a party, since the respondent No. 1 has redeemed the said suit land with the service benefits of her late husband which was her only saving as she and her family had to vacate the quarters after the demise of his husband. The learned counsel for the respondents has also cited the following cases wherein it has shown that the Court has taken lenient view in condoning the delay. The Court was concerned regarding merits of the case and where it says that rule of limitation are not meant to destroy the rights of the parties. They were to see that parties do not resolved to dilatory tactics but seek there remedy promptly. He has cited the case in I.A 841/2016 in SL.No.259859 LA App dated 10.02.2017where condonation of delay has granted for 3521 days The learned counsel has cited the decisions of the Apex Court in Vidya Devi vs. State of Himachal Pradesh and others. reported in (2020) 2 SCC 569 , and a decision of this bench in Lalchamliana vs. Margaret Malsawmkimi Zadeng and another in RSA 2 of 2021 dated 12.05.2022 where this bench had referred to the decision of the Apex court in N. Balakrishnan vs. M. Krishnamurthy reported in (1998) 7 SCC 123 wherein the Apex court held that length of delay is no matter and acceptability of the explanation is the only criterion. 9. 9. Having heard the submissions of both the parties and on perusal of the materials on record I find that the learned lower court in its order dated 22.01.2020 had condoned the delay of 305 days observing that though the respondents in the instant case/ applicants had received the impugned order in the month of October 2017, however , the necessity for filing a review petition against the order dated 05.10.2022 only became abundantly clear after the refusal to allow the impleadment of the applicant in Eviction Suit No. 13of 2017. However, it appears that the learned court below was misconcieved, since it is clear from the records that the impleadment application was rejected on 19.11.2018 while the review petition against the order dated 05.10.2017 in Civil Suit No. 111 of 2017, was filed in May, 2018. Besides this misconceived ground, no other explanation was given for the delay in filing the review petition against the Order dated 05.10.2017 in Civil Suit No. 111 of 2012. The Apex Court in State of Madhya Pradesh & Ors. vs. Bherulal, (supra) held that; “5. A preposterous proposition is sought to be propounded that if there is some merit in the case, the period of delay is to be given a go-by. If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the Court in an appropriate case to condone the delay. 8. Looking to the period of delay and the casual manner in which the application has been worded, we consider appropriate to impose costs on the petitioner- State of Rs.25,000/- (Rupees twenty five thousand) to be deposited with the Mediation and Conciliation Project Committee. The amount be deposited in four weeks. The amount be recovered from the officers responsible for the delay in filing the special leave petition and a certificate of recovery of the said amount be also filed in this Court within the said period of time. 9. The special leave petition is dismissed as time barred in terms aforesaid.” In D. Gopinathan Pillai vs. State of Kerala & Anr (supra) it was held that “We are unable to countenance the finding rendered by the Sub Judge and also the view taken by the High Court. 9. The special leave petition is dismissed as time barred in terms aforesaid.” In D. Gopinathan Pillai vs. State of Kerala & Anr (supra) it was held that “We are unable to countenance the finding rendered by the Sub Judge and also the view taken by the High Court. There is no dispute in regard to the delay of 3320 days in filing the petition for setting aside the award. When a mandatory provision is not complied with and when the delay is not properly, satisfactorily and convincingly explained, the court cannot condone the delay, only on the sympathetic ground. The orders passed by the learned Sub Judge and also by the High Court are far from satisfactory. No reason whatsoever has been given to condone the inordinate delay of 3320 days. It is well-considered principle of law that the delay cannot be condoned without assigning any reasonable, satisfactory, sufficient and proper reason. Both the courts have miserably filed to comply and follow the principle laid down by this Court in catena of cases. We, therefore, have no other option except to set aside the order passed by the Sub-Judge and as affirmed by the High Court. We accordingly set aside both the orders and allow this appeal.” 10. In view of the decision of the Apex court above and the fact that in the instant case there is no satisfactory or convincing explanation given as to why there was a delay of 305 days in filing the review petition as discussed above, I find it fit to set aside the impugned order of the Ld. Senior Civil Judge dated 22.01.2020 in CMA No. 385/2018 condoning the delay of 305 days in filing the Review Petition No. 14/2018 between Smt. Varthantluangi & Anr. vs. Smt. Lalropuii & Ors. 11. Accordingly CRP (i/o) 1of 2021 stands allowed and disposed of.