Manipur High Court
Page |2 vs Md.Najimuddin Shah on 19 December, 2022
SHAMURAILATPA Digitally signed by
SHAMURAILATPAM SUSHIL SHARMA
M SUSHIL SHARMA Date: 2022.12.22 17:10:39 +05'30'
Page |1
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
MC(RFA) No. 26 of 2019
Ref:- RFA No. of 2019
1. K. Ashang Kom, aged about 42 years, S/o K.
Lalkhopao Kom of K.R. Land, Golapati, P.O. &
P.S. Porompat, Imphal East District, Manipur-
795005.
2. K.Lalkhopao Kom aged about 67 years S/o
unknown of K.R.Land Golapati, P.O. & PS.
Porompat, Imphal East District, Manipur -Pin
No.795005. died on 05-04-2021 pendency of
the Appeal and is now substituted by
his L.Rs. (2a) to 2(e), specified below, as per
Order dated 19-042021 passed in MC(RFA)
No.6 of 2021 of the Hon'ble Court.
2(a) Karong Bluesey Kom aged about 49 years
s/o (L) K. Lalkhopao Kom, of K.R. Land Golapati,
P.O. & P.S. Porompat, Imphal East District,
Manipur-795005.
2(b) Karong Chuichui Kom aged about 43 years,
S/o (L) K. Lalkhopao Kom of K.R. Land Golapati,
P.O. & P.S. Porompat, Imphal East District,
Manipur-795005.
2(c) Karong Pamyala Kom aged about 40 years,
d/o (L) K. Lalkhopao Kom of K.R. Land Golapati,
P.O. & P.S. Porompat, Imphal East District,
Manipur-795005.
MC(RFA) No. 26 of 2019 (Ref:- RFA No. of 2019)
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2(d) Karong Wonmila Kom aged about 35 years,
s/o (L) K. Lalkhopao Kom of K.R. Land Golapati,
P.O. & P.S. Porompat, Imphal East District,
Manipur-795005.
2(e) Shingaila Hungyo aged about 83 years, w/o
K. Lalkhopao Kom of K.R. Land Golapati, P.O. &
P.S. Porompat, Imphal East District, Manipur-
795005, represented by her son
K.Ashang Kom Petitioner No.1 in MC(RFA)No.
26 of 2019.
...... PETITIONERS
-Versus-
1. Md.Najimuddin Shah, aged about 37 years
s/o Md.Manuwar Ali of Yairipok Bamon
Leikai, P.O. & P.S. Yairipok, Thoubal District
at present K.R. Land Golapati, Imphal, P.O. 8
P.S. Porompat, Imphal Fast District, Manipur-
795005.
2. Md.Soukat Ali, aged about 42 years, s/o late
Ahmad Ali of Tulihal, Yairipok, P.o.& P.S.
Yairipok, Thoubal District, at present K.R.
Land Golapati, Imphal, P.O. & P.S.
Porompat, Imphal East District, Manipur
- 795005. died on 12-09-2020 pendency of
the Appeal and is now substituted by
his L.Rs. 2(a) to 2(e) , specified below, as
per Order dated 04-11-2020 passed in
MC(RFA) No. 26 of 2019 (Ref:- RFA No. of 2019)
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MC(RFA) No.26 of 2019 of the Hon'ble
Court.
2(a). Nureda Begum aged about 44 years w/o
late Md.Shoukat Ali of Golapati K.R.Lane, P.O. &
P.S. Porompat, Imphal East District, Manipur-
795005.
2(b). Barkat Komol, aged about 25 years,s/o
(L) Md.Shoukat Ali of Golapati K.R.Lane, P.O. &
P.S. Porompat, Imphal East District, Manipur-
795005.
2(c). Mohammad Ershad Komol, aged about 24
years, s/o (L) Md.Shoukat Ali of Golapati
K.R.Lane, P.O. & P.S. Porompat, Imphal East
District, Manipur-795005.
2(d). Md.Nadiyas Komol, aged about 20 years,
s/o (L) Md.Shoukat Ali of Golapati K.R.Lane,
P.O. & P.S. Porompat, Imphal East District,
Manipur-795005.
2(e). Naheeda Komol aged about 16 years d/o
(L) Md.Shoukat Ali of Golapati K.R.Lane, P.O. &
P.S. Porompat, Imphal East District, Manipur -
minor represented by her natural mother and
guardian Nureda Begum Respondent 2(a).
...RESPONDENTS
3. The State of Manipur, represented by the
Secretary (Revenue) to the Government of
Manipur, P.O.& P.S. Imphal, Imphal West
Dist.,795001.
4. The Deputy Commissioner, Imphal East,
MC(RFA) No. 26 of 2019 (Ref:- RFA No. of 2019)
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Manipur, P.O. & P.S. Porompat, Imphal East
Dist., Manipur - 795005.
5. The Director of Settlement & Land Records,
Manipur, Govt. of Manipur, P.O. & P.S.
Lamphel, Imphal West Dist., Manipur795004.
...PROFORMA RESPONDENTS
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the Applicant :: Mr. L. Birendrakumar, Adv.
For the Respondents :: Md. Jalaluddin, Sr.Adv.
Ms. Syeda Nazira, Adv.
Mr. Juno Rahman, Adv.
Date of Hearing and
reserving Judgment & Order :: 14.11.2022
Date of Judgment & Order :: 19.12.2022
JUDGMENT AND ORDER
(CAV)
This petition has been filed by the petitioners to
condone the delay of 528 days in filing the appeal against the
judgment and order dated 13.3.2018 passed in O.S.No.67 of
2012 on the file of the Civil Judge, Senior Division, Imphal East.
2. Originally, M.C.(RFA) No.26 of 2019 has been
filed by the defendants 1 and 2 in the suit. Pending M.C.(RFA)
No.26 of 2019, the second defendant died and his legal heirs
were impleaded as petitioner Nos.2(a) to 2(e) as per the order
of this Court dated 19.4.2021 in MC(RFA) No.6 of 2021.
Similarly, the second plaintiff died pending M.C.(RFA) No.26 of
MC(RFA) No. 26 of 2019 (Ref:- RFA No. of 2019)
Page |5
2019 and his legal heirs were impleaded as respondent
Nos.2(a) to 2(e) as per the order passed in MC (RFA) No.10 of
2020.
3. The case of the petitioners is that the petitioners,
on being informed by his conducting counsel that judgment and
decree has been passed by the Civil Judge, Senior Division,
Imphal East in favour of the plaintiffs in O.S.No.67 of 2012,
instructed their conducting counsel to file an appeal against the
judgment dated 13.3.2018 and after obtaining the certified
copies of decree and judgment, appeal was filed on 10.8.2018
along with an application to condone the delay of 59 days before
the District Judge, Imphal East. By the order dated 16.9.2019
passed in Civil Appeal No.12 of 2019, the District Judge, Imphal
East held that the District Court, Imphal East has no pecuniary
jurisdiction to entertain the appeal as the value of the suit is
Rs.1,56,000/- and, accordingly, ordered for presenting the
appeal before the High Court.
4. Further case of the petitioners is that after
obtaining the certified copy of the decree and judgment dated
16.9.2019, the conducting counsel told the first petitioner to
engage another counsel as she would be unable to conduct the
MC(RFA) No. 26 of 2019 (Ref:- RFA No. of 2019)
Page |6
case in the High Court. Accordingly, the first petitioner tried his
level best to engage a lawyer, but due to paucity of funds, time
taken in raising money to pay the lawyer fee and after mobilising
the money, he engaged the lawyer and the lawyer had taken
time to draft the memo of appeal and miscellaneous application
for condonation of delay. Hence, there is delay of 528 days in
filing the appeal.
5. Resisting the delay condonation petition, the
contesting respondents filed affidavit-in-opposition stating that
the petitioners very negligently and also without taking proper
care and caution filed the appeal before the District Judge,
Imphal East along with an application for condonation of delay
instead of filing the appeal before the High Court. It is stated
that the petitioners and their counsel without going properly the
provisions of law filed three times appeal before the District
Judge, Imphal East with their own negligence and inadvertence
of the provisions of law. It is stated that there is no reasonable
ground for condoning the delay in filing the appeal and,
therefore, the delay condonation application is liable to be
dismissed.
MC(RFA) No. 26 of 2019 (Ref:- RFA No. of 2019)
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6. The learned counsel for the petitioners submitted
that as against the judgment and decree passed in O.S.No.67
of 2012 dated 13.3.2018, the petitioners have filed the appeal
before the District Court, Imphal East along with an application
to condone the delay of 59 days and after condoning the delay
of 59 days, the appeal has been numbered as Civil Appeal
No.12 of 2019. He would submit that by the judgment dated
16.9.2019, the District Judge ordered for presenting the appeal
before the High Court as the appeal suit has been valued at
Rs.1,56,000/-.
7. The learned counsel further submitted that after
obtaining the copy of the judgment passed in Civil Appeal No.12
of 2019, the conducting counsel for the petitioners, namely
Ms.Bidyapati Devi told the first petitioner to engage another
counsel as she would be unable to conduct the case in the High
Court. The first petitioner also tried to engage a lawyer and due
to financial crises, he could not engage the counsel for filing
appeal and that after mobilising funds, the first petitioner
engaged a lawyer, who prepared the grounds of appeal and
application for condonation of delay of 528 days in filing the
appeal and thereafter, filed the appeal before the High Court.
MC(RFA) No. 26 of 2019 (Ref:- RFA No. of 2019)
Page |8
8. The learned counsel for the petitioners further
submitted that though the total delay has been calculated as
528 days i.e. from the date of the judgment in O.S.No.67 of
2012 i.e. 13.3.2018 till the date of filing an appeal before the
High Court i.e. 26.11.2019, t the days spent by the petitioners
before the District Judge, Imphal East is to the excluded and if
the period from 10.8.2018 to 16.9.2019 i.e. 402 days and the
time taken for obtaining certified copy of the order dated
16.9.2019 i.e. 31 days, totally 433 days are excluded, the delay
is only 98 days in filing the appeal before the High Court.
According to learned counsel, the delay is neither wilful nor
wanton. Therefore, in the interest of justice, the delay has to be
condoned. In support, the learned counsel placed reliance
upon (1987) 2 SCC 107 (Collector, Land Acquisiton,
Anantnag and another v. Katiji and others) and AIR 2020
Chhattisgarh 149 (Ashok Kumar Bhelwa v. District Medical
Officer.
9. Per contra, the learned counsel for the contesting
respondents submitted that there is no reasonable explanation
for condoning the delay and that the petitioners without knowing
the pecuniary jurisdiction, filed the appeal before the District
Judge, Imphal East along with an application for condonation
MC(RFA) No. 26 of 2019 (Ref:- RFA No. of 2019)
Page |9
of the delay. However, the same was dismissed on their default
of appearance. Thereafter, the petitioners filed Judicial
Miscellaneous Restoration Case No.3 of 2018 before the
District Judge for restoring the condonation application. By the
order dated 15.12.2018, the said application was dismissed on
15.12.2018.
10. The learned counsel further submitted that the
petitioners very negligently and also without taking proper care
and caution filed the appeal before the District Judge instead
filing the appeal before the High Court. The exclusion of days
sought by the petitioners cannot be considered, as the delay of
402 days spent by the petitioners before the District Court,
Imphal East is a fault purely on the part of the petitioners.
11. The learned counsel urged that each and every
day delay has not been properly explained by the petitioner and
the total delay period to be condoned in filing the appeal i.e. 98
days calculated by the petitioners is incorrect. He would submit
that there is gross negligence on the part of the petitioners.
Thus, a prayer is made to dismiss the petition. In support, the
learned counsel placed reliance upon the decision of the Apex
Court in the case of H.Dohil Constructions Company Private
MC(RFA) No. 26 of 2019 (Ref:- RFA No. of 2019)
P a g e | 10
Limited v. Nahar Exports Limited and another, (2015) 1 SCC
680.
12. This Court considered the rival submissions and
also perused the materials available on record.
13. The suit in O.S.No.67 of 2012 has been filed by
the respondents 1 and 2 before the Civil Judge, Senior Division,
Imphal East against the first petitioner and the father of the
petitioners 2(a) to (d) and husband of petitioner 2(3) and also
against the official respondents, where were arrayed as
defendants 3 to 5 for declaration of right, title and ownership of
the plaintiffs as legal owners and processors over the suit land
and permanent injunction restraining the defendants and their
agents from entering and possessing the same.
14. By the judgment dated 13.3.2018, the trial Court
decreed the suit as under:
"It is hereby ordered and decreed that the
piece of land measuring an area of 0.061
acres which is equivalent to 2657 sq. ft.
bearing Patta No.1328 (New) under Dag
No.5406/5653 of Village No.26-A situated at
Nongpok Ingkhol Golapati, Imphal East,
Tehashil purchased by the plaintiff from one
MC(RFA) No. 26 of 2019 (Ref:- RFA No. of 2019)
P a g e | 11
D. Zeparthang of K.R. Land Golapati shall be
the land marked as "A" and "B" in the Ld.
Commissioner's Report and the same is the
land of the plaintiffs.
It is further ordered and decreed that the land
covered by "C" in Ld. Commissioner's Report
having a depth of 1.7 ft and length of 36 ft is
the Sarkari Khas land. However, the use of
the land/space measuring 12 ft wide and
depth of 1.7 ft at the South Eastern Corner of
the "C" for ingress and egress by the plaintiff
to their homestead land mentioned above
shall not be disturbed by putting obstruction
or the like as the same is the only access
point/approach road to their homestead land.
The remaining portion of sarkarikhas land
having a depth of 1.7 ft and length of 24 ft
shall be kept for public use and o person
including the plaintiff shall make any
construction/fencing encroaching the said
remaining portion of land "C".
Liberty is granted to the plaintiff to fence
along the boundary earmarked by the Ld.
Commissioner leaving sarkarikhas land
having a depth of 1.7 ft and length of 24 ft of
land "C"."
MC(RFA) No. 26 of 2019 (Ref:- RFA No. of 2019)
P a g e | 12
15. Aggrieved by the judgment dated 13.3.2018, the
first petitioner requested the conducting counsel to obtain
certified copies of the judgment and decree. Since the earlier
counsel failed to prepare the grounds of appeal and after getting
the case bundle from the conducting counsel, the first petitioner
engaged Ms.Bidyapati Devi to file an appeal and she prepared
the appeal and filed on 10.8.2018 along with an application for
condonation of delay of 59 days before the District Judge,
Imphal East and the said appeal was taken on file as Civil
Appeal No.12 of 2019. On 16.9.2019, the District Judge held
that the District Court, Imphal East has no pecuniary jurisdiction
to entertain the appeal and accordingly returned the appeal for
presenting the same before the High Court.
16. According to the petitioners, after obtaining the
certified copy of the judgment dated 16.9.2019, the learned
counsel Bidyapati Devi told the first petitioner to engage another
advocate in the High Court. According to the petitioners, due to
paucity of funds, time taken in raising money to pay lawyer's fee
and also time taken in draw up the memo of appeal and petition
for condonation of delay in filing the appeal.
MC(RFA) No. 26 of 2019 (Ref:- RFA No. of 2019)
P a g e | 13
17. In the case on hand, for filing an appeal against
the judgment dated 13.3.2018, the petitioners have chosen a
wrong forum and the wrong forum after finding that it had no
jurisdiction directed the petitioners to file an appeal before the
High Court vide order dated 16.9.2019 and after getting the
copy of the judgment dated 16.9.2019, the petitioners have filed
the appeal before the High Court on 26.11.2019 with a delay of
528 days. Calculating such delay of 528 days, the petitioners
pleaded that the time spent before the District Court, Imphal
East may be excluded and if the said period is excluded, there
is only 98 days delay in filing the appeal. Therefore, such a
shorter delay can be condoned.
18. Since the original suit filed by the plaintiffs is title
suit and the successful litigant has acquired certain rights on the
basis of the judgment under challenge and a lot of time is
consumed at various stages of litigation, this Court is not
inclined to show any sympathy to the petitioners.
19. It is settled law that where there exists inordinate
delay and the same is attributable to the party's inaction and
negligence, the Courts have to take a strict approach so as to
protect the substantial rights of the parties.
MC(RFA) No. 26 of 2019 (Ref:- RFA No. of 2019)
P a g e | 14
20. In the case on hand, though the delay in filing the
appeal is 528 days, under Section 5 of the Limitation Act, it is
only sufficiency of the cause that matters and not the length and
breadth of the delay. While dealing with the Section
5 application, the question of diligence or bona fides are to be
considered.
21. It is settled law that length of delay is no matter,
acceptability of the explanation is the only criterion. Sometimes
delay of the shortest range may be uncondonable due to want
of acceptable explanation whereas in certain other cases delay
of very long range can be condoned as the explanation thereof
is satisfactory.
22. In the case on hand, as stated supra, the
explanation for the delay given by the petitioners is
unacceptable and there has been total negligence on the part
of the petitioners and the cause shown for the delay does not
lack bona fides.
23. At this juncture, by relying upon the decision of the
Chhatitisgarh High Court in the case of Ashok Kumar Bhelwa,
supra, the learned counsel for the petitioners submitted that the
sufficient cause is to receive liberal construction so as to
MC(RFA) No. 26 of 2019 (Ref:- RFA No. of 2019)
P a g e | 15
advance substantial justice and when there is no negligence,
inaction or want of bona fide is imputable to the petitioners, the
delay has to be condoned and that the discretion is to be
exercised like any other judicial discretion with vigilance and
circumspection.
24. The argument aforesaid cannot be appreciated for
the reason that equally the discretion has to be exercised in the
case of other side, as the Hon'ble Supreme Court, time and
again, held that "what needs to be emphasized is that even
though a liberal and justice-oriented approach is required to be
adopted in the exercise of power under Section 5 of the
Limitation Act and other similar statutes, the Courts can neither
become oblivious of the fact that the successful litigant has
acquired certain rights on the basis of the judgment under
challenge and a lot of time is consumed at various stages of
litigation apart from the cost".
25. The Hon'ble Supreme Court in the case of
Maniben Devraj Shah v. Municipal Corporation of Brihan
Mumbai, (2012) 5 SCC 157 held as under:
"24. What colour the expression "sufficient
cause" would get in the factual matrix of a
MC(RFA) No. 26 of 2019 (Ref:- RFA No. of 2019)
P a g e | 16
given case would largely depend on bona
fide nature of the explanation. If the court
finds that there has been no negligence on
the part of the applicant and the cause shown
for the delay does not lack bona fides, then it
may condone the delay. If on the other hand,
the explanation given by the applicant is
found to be concocted or he is thoroughly
negligent in prosecuting his cause, then it
would be a legitimate exercise of discretion
not to condone the delay."
26. Admittedly, the petitioners and their counsel
without going through the provisions of law properly, filed the
appeal before the District Judge, Imphal East with their own
negligence and that the delay caused in filing the present
appeal is only due to the wilful acts and negligence of the
petitioners. Therefore, this Court is of the view that the
argument qua adoption of liberal approach by this Court
canvassed by the petitioners and to condone the delay in filing
the appeal, cannot be countenanced.
27. In H. Dohil Constructions Company Private
Limited, supra, the Hon'ble High Court held that the principle
that the law of limitation is based on a sound public policy and
therefore in the absence of bona fide reasons the applications
MC(RFA) No. 26 of 2019 (Ref:- RFA No. of 2019)
P a g e | 17
for condonation of delay should be strictly construed assumes
significance.
28. Undoubtedly, the statute has granted the Courts
with discretionary powers to condone the delay, however, at the
same time, it also places an obligation upon the party to justify
that he was prevented from abiding by the same due to the
existence of sufficient cause. Although there exists no strait
jacket formula for the Courts to condone the delay, but the
Courts must not only take into consideration the entire facts and
circumstances of the case but also the conduct of the parties.
The concept of reasonableness dictates that the Courts even
while taking a liberal approach must weigh in the rights and
obligations of both the parties. When a right has accrued in
favour of one party due to gross negligence and lackadaisical
attitude of the other, the Court shall refrain from exercising the
aforesaid discretionary relief.
29. As stated supra, in the case on hand, the
contesting respondents have acquired certain rights on the
basis of the judgment of the trial Court under challenge and a
lot of time consumed at various stages. Therefore, this Court is
of the view that the maxim vigilantibus non dormientibus
MC(RFA) No. 26 of 2019 (Ref:- RFA No. of 2019)
P a g e | 18
jurasubveniunt (law assists those who are vigilance and not
those who sleep over their rights) aptly applies to the case on
hand. The petitioners cannot simply throw a blame on the
counsel and as a matter of right, they cannot seek for
condonation of delay of the huge delay of 528 days in filing the
appeal.
30. Weighing the case on hand on the principle scale
of balance of justice, this Court is of the view that the
explanation offered by the petitioners for condonation of the
delay of 528 days is not acceptable and, accordingly, the
petition is liable to be dismissed.
31. In the result, MC (RFA) No.26 of 2019 is
dismissed. Consequently, the un-numbered RFA preferred
against the decree and judgment dated 13.3.2018 passed in
O.S.No.67 of 2012 on the file of the Civil Judge, Senior Division,
Imphal East is rejected. There will be no order as to costs.
JUDGE
FR/NFR
Sushil
MC(RFA) No. 26 of 2019 (Ref:- RFA No. of 2019)
