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2025 DIGILAW 540 (GAU)

Jonah Lalrempuia S/o Vawma Gangte (L), R/o Durtlang Leitan, Aizawl v. Smt Lalhmuchhuaki W/o Vanlalvena

2025-03-26

NELSON SAILO

body2025
JUDGMENT : NELSON SAILO, J. Heard Mr. C Lalfakzuala, learned counsel for the appellant and B Lalramenga, learned counsel for the respondent. By filing this appeal under Order XLIII Rule 1(t) of the Code of Civil Procedure, 1908 (CPC), the appellant seeks for setting aside the Order dated 30.10.2023 passed by the learned Addl.District Judge-II, Aizawl in CMA No. 672/2023 A/o RFA No. 5/2023 by which, the application for restoration of RFA No. 5/2023 and the connected CMA No. 160/2023 were rejected and dismissed. [2.] Brief facts of the case is that Money Suit No. 138/2018 was filed by the instant respondent for recovery of an amount of Rs. 16,80,000/- from the instant appellant or obtaining LSC No. 102801/01/900 of 2007. The Money Suit was disposed of in favour of the respondent vide Judgment & Order dated 05.08.2020 and a Decree was passed ex-parte against the appellant. Against the same, the present appellant filed CMA No. 213/2020 under Order 9 Rule 13 CPC for setting aside the ex-parte Order and Decree dated 05.08.2020 but however, the application was rejected and dismissed vide Order dated 07.12.2021. [3.] The appellant being aggrieved filed RFA No. 19/2022 before this Court alongwith an application for condonation of delay i.e., I.A(C) No. 80/2022. Although the delay was condoned by this Court vide Order dated 02.11.2022, the matter was remanded back for consideration by the District Judge on account of pecuniary jurisdiction. The order was passed separately in the RFA on 02.11.2022 as well. [4.] Pursuant thereto, the appellant filed RFA No. 5/2023 alongwith CMA No. 160/2023 for condonation of delay in filing the said appeal. The Lower Appellate Court, however, refused to condone the delay and dismissed the application for condonation of delay vide Order dated 27.07.2023. In view of the rejection of the application for condonation of delay, the appeal also was dismissed as barred by limitation. [5.] The appellant being aggrieved with the dismissal of the CMA No. 160/2023 and the RFA No. 5/2023 filed an application for re- admission/restoration of the same vide CMA No. 672/2023. However, the said application was rejected by the learned Court below vide Order dated 30.10.2023. [6.] The appellant being aggrieved filed RSA No. 1/2024 before this Court under Section 100 CPC challenging the Order dated 27.07.2023 passed in CMA No. 160/2023 in RFA No. 5/2023. However, the said application was rejected by the learned Court below vide Order dated 30.10.2023. [6.] The appellant being aggrieved filed RSA No. 1/2024 before this Court under Section 100 CPC challenging the Order dated 27.07.2023 passed in CMA No. 160/2023 in RFA No. 5/2023. [7.] The second appeal was taken up for consideration on 02.09.2024 and this Court after hearing the parties was of the view that it can be implied that CMA No. 672/2023 had been made under Order XLI Rule 19 CPC and it was dismissed under Order XLI Rule 11 or Rule 17 CPC. That although the appellant had the opportunity to file a second appeal on the rejection of CMA No. 160/2023 & RFA No. 5/2023, the appellant had availed the provision of Order XLI Rule 19 CPC for challenging the impugned orders dated 27.07.2023. Therefore, the Court opined that unless the appellant makes a challenge to the impugned Order dated 30.10.2023 passed in CMA No. 672/2023, the appellant cannot make a challenge to the Order dated 27.07.2023 passed in CMA No. 160/2023 & RFA No. 5/2023 since there was a clear provision to file an appeal under Order XLIII Rule 1(t) CPC. Accordingly, the second appeal was dismissed. [8.] Pursuant to the dismissal of the second appeal with the observation that was made, the appellant has filed the instant appeal by invoking Order XLIII Rule 1(t) CPC. Mr. C Lalfakzuala, learned counsel for the appellant by referring to the Memorandum of Appeal submits that the learned Court below while passing the impugned Order dated 30.10.2023 had failed to satisfy itself and appreciate the fact that the appellant was not properly represented by his counsel in prosecuting the case before the Trial Court or before the Appellate Court. He submits that there are no materials available to show that the appellant had voluntarily absented himself or he was negligent for not appearing before the Court at the time of hearing. He submits that from a perusal of the order sheet dated 21.04.2023, 25.05.2023, 26.06.2023 & 26.07.2023, it can be seen that the appellant was neither summoned by the Court nor was informed by his counsel to appear before the Court. In fact, the learned Court below ought to have invoke Order V Rule 3 CPC summoning the appellant to appear personally in case of failure by his counsel to represent him on several occasions. In fact, the learned Court below ought to have invoke Order V Rule 3 CPC summoning the appellant to appear personally in case of failure by his counsel to represent him on several occasions. The same not having been done, their impugned Order dated 30.10.2023 has caused grave prejudice to the appellant because if the appeal is not re-admitted or restored to file, the appellant is bound to suffer irreparable loss and hardship as his rights and claim for appropriate relief would be foreclosed thereby resulting in gross infringement of his Fundamental Rights. The learned counsel also submits that the learned Court below instead of having an independent consideration on the case projection made by the appellant had simply relied upon the earlier order passed by the predecessor Court on 27.07.2023 in CMA No. 160/2023 and in RFA No. 5/2023. [9.] The learned counsel also submits that although the learned Court below had relied upon the decision of the Apex Court rendered in Shyam Sundar Sarma vs. Pannalal Jaiswa & Ors, reported in (2005) 1 SCC 436 , the same would not be applicable to the case of the appellant since there is no similarity on the fact situation. Referring to the said decision, the learned counsel submits that according to the Apex Court, the High Court had rightly held that a petition, under Order IX Rule 13 CPC would not lie in view of the appeal earlier filed by the same party, having already been dismissed whether it be for default or for any other reason except for withdrawal. The learned counsel submits that in the instant case, the appellant prior to filing the appeal had filed CMA No. 213/2020 under Order IX Rule 13 CPC for setting aside ex-parte order which, however came to be rejected vide Order dated 07.12.2021. It was only thereafter that the appellant preferred RFA No. 5/2023 alongwith CMA No. 160/2023. Such being the position, the case cited and relied upon by the learned Trial Court would not be applicable to the case of the appellant. [10.] The learned counsel submits that the ratio of any decision must be understood in the background of the facts of that case since it is an established principle of law that a case is only an authority for what it actually decides and not what logically follows from it. [10.] The learned counsel submits that the ratio of any decision must be understood in the background of the facts of that case since it is an established principle of law that a case is only an authority for what it actually decides and not what logically follows from it. In support of his submission, the learned counsel relies upon the case of Ambica Quarry Works & Anr. vs. State of Gujarat & Ors., reported in (1987) 1 SCC 213 , which was again relied upon by the Apex Court in Deepak Bajaj vs. State of Maharashtra & Anr., reported in (2008) 16 SCC 14 . The learned counsel therefore submits that the impugned Order dated 30.10.2023 having been passed without giving due consideration of the case projected by the appellant, the same should be set aside and the matter remanded back for fresh consideration. The learned counsel in support of his submission has relied upon the following authorities:- (1) Sangram Singh vs. Election Tribunal, KOTAH & Anr., (1955) SCC OnLine SC 21. (2) Bank of India vs. Lekhimoni Das & Ors., (2000) 3 SCC 640 . (3) Judgment dated 05.02.2019 passed by the Supreme Court of India in Civil Appeal No. 1463/2019 A/o SLP(C) No. 23718/2018 (The Commissioner, Mysore Urban Development Authority vs. S S Sarvesh). (4) Secretary, Department of Horticulture, Chandigarh & Anr. vs. Raghu Raj, (2008) 13 SCC 395 . (5) State of Nagaland vs. Lipok Ao & Ors., (2005) 3 SCC 752 . (6) Tukuram Kana Joshi & Ors. vs. Maharashtra Industrial Development Corporation & Ors., (2013) 1 SCC 353 . (7) N. Balakrishnan vs. M. Krishnamurthy, (1998) 7 SCC 123 . [11.] Mr. B Lalramenga, learned counsel for the respondent, on the other hand, submits that no sufficient ground has been shown by the appellant for restoration of the application for condonation of delay and the connected appeal. Referring to the pleadings made by the appellant, the learned counsel submits all that has been mentioned by the appellant is that there was some sort of a communication gap between the appellant and his appointed counsel and the same is without any substantiation or any documents to support such claim. Therefore, the impugned Order dated 30.10.2023 was rightly passed by the learned Lower Appellate Court. Therefore, the impugned Order dated 30.10.2023 was rightly passed by the learned Lower Appellate Court. [12.] The learned counsel further submits that the case of Shyam Sundar Sharma (supra) is squarely applicable to the instant case and in fact, the dismissal of the application for condonation of delay amounts to dismissal of the appeal itself since the order being challenged in the said appeal only gets upheld by the dismissal of the application for condonation of delay. He submits that the application for condonation of delay was dismissed for want of sufficient cause being shown by the applicant as to why the delay had occasioned. Whereas, the appeal was dismissed as being barred by limitation. [13.] Referring to the Order dated 02.09.2024 passed by this Court in RSA No. 1/2024, the learned counsel submits that this Court also had observed that a second appeal would lie from an order dismissing the application for condonation of delay and therefore, the appellant ought to have filed a second appeal challenging the rejection of the CMA No. 160/2023, A/o RFA No. 5/2023. He submits that since the earlier second appeal was not disposed of on merit, there is no bar in filing another second appeal and it would not be barred by the principles of res judicata. The learned counsel has relied upon the paragraph Nos. 8, 9, 9.1, 10 & 15 of Shyam Sundar Sharma (supra) to support his submissions. [14.] The learned counsel also submits that in fact CMA No. 672/2023 was also time barred and that even if an objection on this ground had not been made by the respondent but yet, in view of Section 3 of the Limitation Act, such time barred application would not be maintainable and should be rejected. He submits that the respondent also cannot be precluded from raising such a ground even at this stage. In support of his submission, the learned counsel relies upon the case of S. Shivraj Reddy vs. Raghuraj Reddy & Ors., reported in 2024 SCC OnLine SC 963 and also the case of Sheodan Singh vs. Daryao Kunwar, reported in 1966 SCC OnLine SC 98. [15.] The learned counsel further submits that from the sequence of events right from the filing of the money suit, it can be plainly seen that the appellant has been negligent in not availing the remedy available to him on time. [15.] The learned counsel further submits that from the sequence of events right from the filing of the money suit, it can be plainly seen that the appellant has been negligent in not availing the remedy available to him on time. In view of such callous attitude, the learned Courts below had rightly rejected the applications filed by the appellant by refusing to condone the delay which, otherwise, were not explained to the satisfaction of the Court below. He thus submits that under the given facts and circumstance, the impugned Order dated 30.10.2023 does not call for any interference by this Court and the appeal should be dismissed. He also submits that even with the dismissal of the instant appeal, the appellant is still not prevented to prefer a second appeal against the Order dated 27.07.2023 passed in CMA No. 160/2023, A/o RFA No. 5/2023. [16.] I have heard the learned counsels for the parties and I have perused the materials available on record. After a decree was passed ex-parte in favour of the present respondent in Money Suit No. 138/2018 vide Order dated 05.08.2020, the appellant filed an application under Order 9 Rule 13 CPC for setting aside the ex-parte order i.e., CMA No. 213/2020. However, the same was rejected by the Court below vide Order dated 07.12.2021. The appellant, instead of challenging the Order dated 07.12.2021, filed RFA No. 19/2022 before this Court challenging the ex-parte order and Decree dated 05.08.2020 passed in the Money Suit. The appeal was accompanied by an application for condonation of delay. The delay was condoned but however, the appeal was disposed of by granting liberty to the appellant to approach the appropriate forum i.e., the Court of District Judge. The appellant accordingly filed RFA No. 5/2023 with CMA Appl. No. 160/2023 before the Court of District Judge but however, vide Order dated 27.07.2023, delay was not condoned and the application as well as the appeal was dismissed. [17.] The appellant then filed CMA No. 672/2023 seeking for re- admission/restoration of CMA No. 160/2023 and RFA No. 5/2023 but however, the said application was rejected vide Order dated 30.10.2023. [18.] The appellant instead of preferring an appeal against the said order filed RSA No. 1/2024 challenging the Order dated 27.07.2023 passed in CMA No. 160/2023 and RFA No. 5/2023. [18.] The appellant instead of preferring an appeal against the said order filed RSA No. 1/2024 challenging the Order dated 27.07.2023 passed in CMA No. 160/2023 and RFA No. 5/2023. This Court, while disposing the RSA vide Order dated 02.09.2024 was of the view that CMA No. 672/2023 was for re- admission/restoration of CMA No. 160/2023 and RFA No. 5/2023 in terms of Order XLI Rule 19 CPC. The same having been rejected vide Order dated 30.10.2023, an appeal can be made in terms of Order XLIII Rule 1(t) CPC. [19.] Therefore, as appellant did not challenge the Order dated 30.10.2023 under the said provision, the second appeal was found to be not maintainable. In other words, according to this Court unless the appellant makes a challenge to the impugned Order dated 30.10.2023 passed in CMA No. 672/2023, he cannot make a challenge to the Order dated 27.07.2023 passed in CMA No. 160/2023 and RFA No. 5/2023. It is therefore for this reason that the appellant has filed the instant appeal under Order 43 Rule 1(t) CPC. The Order dated 02.09.2024 passed in RSA No. 1/2024 has not been challenged by either of the parties and therefore, the same has attained finality. Although the learned counsel for the respondent has submitted that since the second appeal was not disposed of on merit, the appellant is not debarred from filing a fresh second appeal challenging the Order dated 27.07.2023 passed in CMA No. 160/2023 and RFA No. 5/2023, the fact remains that this Court vide Order dated 02.09.2024 as already stated herein above has opined that the appellant will have to first challenge the Order dated 30.10.2023 passed in CMA No. 672/2023 before challenging the Order dated 27.07.2023 passed in CMA No. 160/2023 and RFA No. 5/2023. Therefore, this Court is not inclined to accept the submission of the learned counsel for the respondent. [20.] This Court while dismissing RSA No. 1/2024 on 02.09.2024 observed that the application for restoration of RFA No. 5/2023 and CMA No. 160/2023 filed by the appellant through CMA No. 672/2023 was an application under Order XLI Rule 19 CPC. Order XLI Rule 19 CPC may be reproduced below for ready perusal:- “ 19. Re-admission of appeal dismissed for default. Order XLI Rule 19 CPC may be reproduced below for ready perusal:- “ 19. Re-admission of appeal dismissed for default. - Where an appeal is dismissed under rule 11, sub-rule (2) or rule 17 [***], the appellant may apply to the Appellate Court for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re- admit the appeal on such terms as to costs or otherwise as it thinks fit.” [21.] From the above abstract, it may be seen that when an appeal is dismissed under Rule 11, sub-Rule (2) or Rule 17, the appellant may apply to the Appellate Court for re-admission of the appeal and when it is proved that he was prevented by any sufficient cause from appearing when the appeal was called for hearing, the Court shall re-admit the appeal on such terms and conditions as it thinks fit. In the present case, the appellant had explained that it was on account of certain miscommunication between the appellant and his counsel that the appellant was not represented on four consecutive dates. However, the learned Lower Appellate Court was of the view that whether or not the omission to mention the specific provision of law was fatal to the case of the appellant, it was difficult to overlook the lethargy and lack of interest on the part of the appellant for having failed to attend personally or through his counsel on four consecutive dates and accordingly, rejected the application for restoration. [22.] As already stated, the appellant was represented by his engaged counsel but due to certain miscommunication, the appellant remained unrepresented on four consecutive dates. It is true that a litigant even after engaging a counsel to represent him in the Court still ought to be vigilant about the proceedings before the Court and the status of the case but however, having accepted the brief of his client, the counsel concerned has taken the responsibility to act on behalf of his client. If the appointed counsel had failed to appear before the Court on the date fixed, his client under the given circumstance without being given an opportunity cannot be held to be accountable. If the appointed counsel had failed to appear before the Court on the date fixed, his client under the given circumstance without being given an opportunity cannot be held to be accountable. The Apex Court in Raghu Raj (supra) held that normally a party should not suffer on account of default or non-appearance of the Advocate. In the present case also, the learned Lower Appellate Court ought to have considered the fact that the default was on the part of the counsel and therefore should have proceed with the matter accordingly. The same having not been done, the impugned order in the considered view of this Court requires to be interfered with. [23.] The Apex Court in the case of Lipok Ao & Ors. (supra) in the given facts of that case held that the expression “sufficient cause” should be considered with pragmatism in a justice oriented approach rather than the technical detection of sufficient cause for explaining everyday’s delay. The Court should decide the matters on merit unless the case is hopelessly without merit. [24.] Reliance has been placed by the learned Lower Appellate Court upon the case of Shyam Sudar Sharma (supra) in passing the impugned Order dated 30.10.2023, wherein it was held that a petition under Order IX Rule 13 CPC would not lie in view of filing of an appeal against the decree by the appellant and the dismissal of the appeal though for default. However, in the present case, the appellant initially filed CMA No. 213/2020 under Order IX Rule 13 for setting aside the ex-parte order in the money suit. After the same was rejected vide Order dated 07.12.2021, the appellant filed RFA No. 19/2022 before this Court which also was disposed of vide Order dated 02.11.2022 after condoning the delay in filing the appeal and by giving liberty to the appellant to approach the learned District Judge. It, therefore, can be seen that the fact situation in the present case is not similar to that of Shyam Sundar Sharma (supra) where appeal was first preferred and thereafter an application under Order IX Rule 13 was preferred after dismissal of the appeal. It, therefore, can be seen that the fact situation in the present case is not similar to that of Shyam Sundar Sharma (supra) where appeal was first preferred and thereafter an application under Order IX Rule 13 was preferred after dismissal of the appeal. [25.] The Apex Court in Ambica Quarry Works (supra) held that the ratio of any decision must be understood in the background of the facts of that case and that a case is only an authority for what it actually decides and not what logically follows from it. Therefore, there clearly being distinguishable facts in the case of Shyam Sunder Sharma (supra), the same cannot be applied to the case of the appellant. The Apex Court in the case of Shyam Sundar Sharma (supra) in the given facts of that case also held that the first appeal is a valuable right to the appellant and therefore, the appellant is entitled for an opportunity to prosecute his case on merits. If the counsel representing did not appear for the myriad reasons, the Court could have imposed some cost on them for restoration of the appeal to compensate the respondent instead of depriving them of their valuable rights to prosecute their appeal on merits. In the present case as well with the refusal on the part of the Lower Appellate Court through its impugned Order dated 30.10.2023, the right of the appellant to prosecute his case on merits has been foreclosed. [26.] In view of the observations and discussions made above, the impugned Order dated 30.10.2023 in the considered view of this Court has to be interfered with and accordingly, the same is set aside. The matter now remanded back to the learned Lower Appellate Court for fresh consideration in the light of the observations made herein above and to pass an appropriate orders. Since the parties are represented before this Court, they are directed to appear before the Lower Appellate Court on 08.04.2025. Upon their appearance before the learned Lower Appellate Court on the given date, the learned Lower Appellate Court shall proceed with the matter in accordance with law and dispose of the same after giving the parties the opportunity to be heard. [27.] With the above observation and direction, the appeal stands disposed of.