T. Vanlalhruaii D/o T. Sangkhuma (L) v. Tochhawng Lalpianmawia S/o T. Sangkhuma (L)
2024-02-08
KAUSHIK GOSWAMI
body2024
DigiLaw.ai
JUDGMENT : KAUSHIK GOSWAMI, J. 1. Heard Mr. Saurabh Pradhan, learned counsel for the applicant. Also heard Mrs. Annie Lalenkawli, learned counsel for the respondent. 2. This is an application under Section 5 of the Indian Limitation Act, 1963 for condonation of delay of 1507 days in filing the connected appeal under Section 17(2) of the Mizoram Civil Court Act, 2005 read with Section 96 of the CPC against the Order dated 11.03.2019 passed by Senior Civil Judge, Aizawl, Mizoram in Heirship Case No. 55/2019 and Heirship Certificate Memo No. 182/SCJ(A)/2019 dated 11.03.2019 issued by the said Court in favour of the respondent, i.e. Tochhawng Lalpianmawia in respect of LSC No. 63/1968 located at Chanmari, Aizawl left by T. Sangkhuma (late father of the applicant and the respondent). 3. The facts of the case is that the respondent was issued a Heirship Certificate i.e. Heirship Certificate Memo No. 182/SCJ(A)/2019 dated 11.03.2019 against a land left by the father of the applicant and the respondent vide the Order dated 11.03.2019 passed by Senior Civil Judge, Aizawl, Mizoram in Heirship Case No. 55/2019. The applicant being aggrieved by the said Order dated 11.03.2019 preferred the appeal along with a condonation application. 4. Mr. Saurabh Pradhan, learned counsel for the applicant submits that the Heirship Certificate was issued on 11.03.2019 in the absence of the applicant and the applicant was unaware of the same and the notice even if issued in newspaper is also not known by the applicant. It was only in April, 2023, the applicant came to know about the impugned Judgment & Order and the impugned Heirship Certificate issued in favour of the respondent when the respondent had asked her to vacate the house and accordingly, there has been a delay of 1507 days in filing the Regular First Appeal which is unintentional and beyond the control of the applicant. 5. Mrs. Annie Lalenkawli, learned counsel for the respondent on the other hand submits that the applicant was fully aware of the Heirship Certificate proceedings and in fact, she along with her mother had signed the Acknowledgment Certificate, i.e. Hriatpuina, whereby she has acknowledged the fact that the Heirship application has been applied by the respondent. 6.
5. Mrs. Annie Lalenkawli, learned counsel for the respondent on the other hand submits that the applicant was fully aware of the Heirship Certificate proceedings and in fact, she along with her mother had signed the Acknowledgment Certificate, i.e. Hriatpuina, whereby she has acknowledged the fact that the Heirship application has been applied by the respondent. 6. The learned counsel for the respondent further submits that the applicant, despite having known of the proceedings of the Heirship Certificate, chose to stand outside and in fact, by issuing the Acknowledgment Certificate has given no objection to go ahead with the Heirship Certificate. She accordingly submits that the grounds averred in the condonation application is not bona-fide and are not sufficient cause. 7. I have heard the submissions made at the bar and have perused the materials available on record. 8. It appears from the Acknowledgment Certificate which is available at page No. 39 of the connected RFA along with the translated copy at page No. 40, that the applicant acknowledges the Heirship application applied by the respondent. The said Acknowledgment Certificate is extracted here under for ready reference: “TRUE ENGLISH TRANSLATION ACKNOWLEDGMENT My husband/father T. Sangkhuma had expired on 4.10.2010 and we acknowledge the Heirship Application applied by Tochhawng Lalpianmawia. Sd/- T. VANLALHRUAII D/O T. SANGKHUMA (L) AIZAWL VENGLAI Sd/- ROHMINGTHANGI SAILO W/O T. SANGKHUMA (L) AIZAWL VENGLAI.” 9. Paragraph Nos. 9, 10 & 11 of the condonation application setting out the grounds for delay is extracted hereunder for ready reference: “9. That while the appellant has been peacefully living, the respondent asked her to vacate the house some time in the month of April 2023 and when raised objection stating that she too is the daughter who looked after her late father and mother during their life time and in difficult times while the respondent never looked after them, it was informed about the heirship in favour of the respondent by the respondent to the shock and surprise of the appellant. The appellant came to hear about the heirship for the first time and was never informed about the heirship and the appellant was of the impression that the heirship if any was only for taking out original LSC. The appellant begun to make enquiry and came to learn lately about the heirship case and heirship certificate. The appellant was also unaware about any notice.
The appellant begun to make enquiry and came to learn lately about the heirship case and heirship certificate. The appellant was also unaware about any notice. The appellant was also unaware about the notices in the news paper as she never read the same and was also not informed by any one about the said notice including the respondent. On further enquiry, it was ascertained that a Heirship Certificate Memo No. 182/SCJ (A)/2019 dated 11th March, 2019 was issued in favour of the respondent behind the back of the appellant. The appellant also came to learn about the Order dtd.11.03.2019 passed by the Id. Senior Civil Judge, Aizawl in Heirship Case No. 55 of 2019. The heirship was also applied after eight years only in the year 2019. It was only after applying and receiving the certified true copy of order dtd.11.03.2019, the appellant came to be truly aware about the contents of the order and heirship certificate. 10. That the appellant had to seek the advice of some counsels and advised her to prefer an appeal. The appellant also took some time in managing the necessary expenditures and the counsels in applying the certified true copy of order and other relevant documents and in preparing the appeal and in course, there has been some delay as well. Thus, delay in filing the appeal. 11. That the delay even if any at all is not intentional or mala-fide or to gain some profit but due to some unavoidable circumstances and not for playing any delay tactics and the same may kindly be condoned in the interest of justice.” 10. From the perusal of the aforesaid grounds, it appears that the applicant has now taken a stand that she has come to know about the Heirship for the first time in the month of April, 2023 when she was asked to vacate the house. The applicant has further stated that she was never informed about the Heirship and that she was of the impression that the Heirship if any, was only for taking out original LSC. The said averment made under oath is contrary to the Acknowledgment Certificate issued by her, inasmuch as, she has already acknowledged the fact that the respondent is going to apply for Heirship Certificate. 11.
The said averment made under oath is contrary to the Acknowledgment Certificate issued by her, inasmuch as, she has already acknowledged the fact that the respondent is going to apply for Heirship Certificate. 11. In an application for condonation of delay, it is imperative for the applicant to set out the grounds of delay truthfully and genuinely and not merely for making out a case for condonation. 12. Pertinent to refer to the decision of the Apex Court in Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and Others, (2013) 12 SCC 649 , wherein the Apex Court has laid down the principles applicable to an application for condonation of delay. Paragraph Nos. 21 & 22 of the aforesaid Judgment is abstracted hereunder for ready reference: “21. From the aforesaid authorities the principles that can broadly be called 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 a 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.
21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a 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 principle 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. 21.11. (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. 22. To the aforesaid principles we may add some more guidelines taking Vote of the present day scenario. They are: 22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. 22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. 22.3.
22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. 22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. 22.4. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.” 13. Keeping the aforesaid principles in mind, I shall now consider as whether the delay occurred in filing the appeal, can be condoned. 14. It appears that the applicant has not stated the facts truthfully and has adopted falsehood to gain advantage from this Court. 15. The applicant despite having knowledge of the Heirship proceedings, sat silently and only when was asked to vacate the house, approached this Court. The averment of the applicant that she did not have knowledge of the Heirship proceeding cannot be accepted as a matter of course. In fact, it is abundantly proved that she had knowledge of the Heirship proceedings and lied before this Court under oath to the effect that she had only heard about the Heirship for the first time when she was asked to vacate the house. 16. The conduct of a party seeking condonation is a relevant factor to take into consideration. The applicant has resorted to falsehood to somehow make a case for condonation. 17. Pertinent to refer to the decision in Public Prosecutor, High Court, Hyderabad vs. Purushottam Reddy, 1999 (2) ALT 127 , wherein it has held at paragraph No. 4 as follows: “4. The contention of the respondent is that the copy application bearing No. 5900 of 1996 referred to in the affidavit of the Sub-Inspector does not relate to any copy application filed on behalf of the State, that the said copy application was filed by the accused and certified copy was obtained on 19-7-1996 and the Sub-Inspector has obtained a xerox copy of the said certified copy of the Judgment which was taken from him and later on filed the present application with false affidavit for the purpose of obtaining condonation of delay.
The learned Counsel for the respondent has also produced the original certified copy given by the lower Court to the accused in Copy Application No. 5900 of 1996 and it is clear from the said certified copy of the judgment of the lower Court that the copy application 5900 of 1996, which is referred to in the affidavit of the Sub-Inspector of Police was filed only by the accused seeking certified copy from the lower Court and not on behalf of the prosecution. It is, therefore, clear that the Sub-Inspector of Begumpet Police Station, who has given the affidavit in support of the petition has give a false affidavit knowing fully well that such affidavit is false. It is quite reprehensible on the part of the Sub-Inspector to give a such false affidavit to mislead the Court with a view to obtain condonation of delay. The reasons urged in the affidavit filed in support of the petition for condonation of delay are blatantly false. The Sub-Inspector of Police has evidently obtained a xerox copy of the certified copy of the judgment delivered to the accused in CA No. 5900 of 1996 and filed the same along with the appeal. It is quite evident that no copy application was filed on behalf of the State for obtaining the certified copy of the judgment of the lower Court for the purpose of preferring the appeal and the xerox copy of the certified copy of the judgment enclosed to the appeal memorandum, which bears copy application No. 5900 of 1996, does not refer to any certified copy of the judgment obtained by the prosecution as mentioned in the affidavit of the Sub-Inspector. Under these circumstances, it is not a fit case where the petition filed for condonation of delay can be allowed and there are no merits in the petition.” 18. As such, this Court is of the opinion that delay in filing the appeal cannot be condoned on the basis of the false statement made in the condonation application. Such conduct of the applicant cannot be encouraged. Further, the grounds for delay are not satisfactory, bona-fide and sufficient. 19. That being so, this Court is not inclined to condone the delay of 1507 days as prayed for. As such, the condonation application stands rejected. 20. I.A. is accordingly disposed of.