Manipur High Court
Shri T.S. Thurhring Anal vs Shri Jamkholun Haokip on 15 June, 2022
Item No. 40
LAIREN Digitally signed
MAYUM byLAIRENMAYUM IN THE HIGH COURT OF MANIPUR
INDRAJE INDRAJEET
ET
SINGH
Date: 2022.06.16
AT IMPHAL
10:44:54 +05'30'
SINGH
CRP(CRP.Art.227) No. 57 of 2018
Shri T.S. Thurhring Anal, aged about 55 years, s/o (L) Ts. Rungsung Anal,
Chief of Thangbung Minou Village, P.O. & P.S. Moreh, Chandel District,
Manipur-795 127.
....Petitioner
- Versus -
1. Shri Jamkholun Haokip, aged about 63 years, s/o (L) Doukhomang of
Moreh, P.O. & P.S. Moreh, Chandel District, Manipur, at present residing
at Chassad Avenue, New Checkon, Imphal, Manipur-795 001.
2. Shri Lalkholun Haokip, aged about 61 years, s/o Semjalet Haokip of
Moreh Ward No. 8, P.O. & P.S. Moreh, Chandel District, Manipur-795 127.
...Respondents
BEFORE
HON'BLE THE CHIEF JUSTICE MR. SANJAY KUMAR
15.06.2022
[1] This Civil Revision Petition, filed under Article 227 of the Constitution,
arises out of the order dated 04.09.2018 passed by the Ld. Civil Judge (Senior
Division), Chandel, in Judl. Misc. Case No. 6 of 2018 (Ref: Judl. Misc. Case No.
11 of 2017 in Original Suit No. 7 of 2014). The petitioner is the plaintiff in the
said suit and also the petitioner in Judl. Misc. Case No. 6 of 2018.
[2] By order dated 19.11.2018 passed in this revision, this Court directed
the Trial Court not to proceed further in the matter. The said order was extended
thereafter from time to time and is still operative as on date.
[3] Heard Mr. T. Rajendra, learned counsel for the petitioner/plaintiff;
and Mr. Serto T. Kom, learned counsel for the respondents/defendants.
Parties shall hereinafter be referred to as arrayed in the suit.
[4] Original Suit No. 7 of 2014 was filed by the plaintiff for declaration of
title and for eviction of the defendants from the suit schedule property. Though
the defendants entered appearance therein and filed their written statements
separately, they failed to appear before the Trial Court despite service of notice
in relation to determination of appearance by their learned counsel who filed
Judl. Misc. Case No. 3 of 2015 for that purpose. The suit was decreed ex parte
on 31.03.2015. The defendants then filed Judl. Misc. Case No. 11 of 2017
seeking condonation of the delay of 935 days in filing an application to set aside
the ex parte judgment and decree dated 31.03.2015. However, their prayer in
this miscellaneous case was rather ambiguous as it read as follows: 'it is,
therefore, prayed that this Hon'ble Court be pleased to pass an order for
issuance of summons to the O.P and to condone the delay of 935 days in filing
the accompanying petition for setting aside the Ex-parte Judgment & Order and
Decree dated 31.03.2015, so as to enable the petition to be considered by this
Hon'ble Court in the interest of justice.'
[5] Treating this as an application with two prayers, viz., one for
condonation of delay and the other to set aside the ex parte judgment and
decree, the plaintiff filed a preliminary written objection on 09.01.2018. Therein,
he contended that Rule 20(2) of the Civil Court Rules and Orders of the Gauhati
High Court, applicable in the State of Manipur, barred a single application being
made for distinct subject matters. He also craved the leave of the Court to
submit full written objections after disposal of his preliminary objection. His
preliminary objection was thereupon numbered by the Trial Court as Judl. Misc.
Case No. 1 of 2018 and the same was disposed of by order dated 08.02.2018,
recording that the preliminary written objection was accepted, with the rider
that 'leave to file additional pleading shall be considered as and when additional
pleading is sought to be brought on record'. Though the miscellaneous case
stood disposed of by virtue of this order, it appears that the defendants
thereafter filed an application seeking leave to file a replication to the preliminary
written objection. This application was filed on 07.03.2018. By order dated
11.05.2018, the Trial Court took up the application as Judl.Misc. Case No. 4 of
2018 and allowed the same. Significant to note, the defendants had stated in
their replication that Judl. Misc. Case No. 11 of 2017 was only an application for
condonation of delay and that an application to set aside the ex parte judgment
and decree dated 31.03.2015 was filed separately and would only be taken up
after the delay was condoned. Taking a cue from this statement, the plaintiff
filed an application seeking leave to file his written objections to Judl. Misc. Case
No. 11 of 2018 filed for condonation of delay. This application was numbered as
Judl. Misc. Case No. 6 of 2018 by the Trial Court. However, by order dated
04.09.2018, the Trial Court disallowed the plea of the plaintiff and refused him
leave to file his written objections to the condone delay petition. Aggrieved
thereby, the plaintiff is before this Court.
[6] Perusal of the order under revision reflects that the Trial Court
equated the written objections sought to be filed by the plaintiff in response to
the condone delay petition with a written statement filed under Order 8 CPC.
Support for this was sought to be drawn from Section 141 CPC. However, this
approach on the part of the Trial Court was patently erroneous. Order 6 Rule 1
CPC defines 'pleading' to be either the plaint or the written statement. It would
therefore be advisable for Courts of Law to be careful while referring to a
particular document as a 'pleading'. The scope of that word is circumscribed by
the precise definition given to it in the aforestated Rule and it cannot be
extended beyond the same. Interlocutory applications and the orders passed
thereon are covered by Order 39 CPC. Though the nomenclature adopted by
different Courts varies from State to State, an application for interim relief would
ordinarily be called an interlocutory application or petition or a miscellaneous
case or petition. The opposite party therein would file its response thereto and
the same is known by different names, such as: counter, counter affidavit,
written objections etc. Merely because the word 'written' is used, it does not
mean that the objections filed to an application for interlocutory relief would be
on par with a written statement.
Section 141 CPC merely provides that the procedure with regard to
suits shall be followed as far as it can be made applicable to all proceedings in
a Civil Court. The meaning of the word 'procedure' cannot be stretched to the
extent that a written statement would be equated with the response filed by a
respondent in an interlocutory application. As the Section itself indicates, the
adoption of such procedure is also only to the extent that it can be made
applicable and no more. In an application filed for a temporary injunction, the
respondent therein cannot seek 90 days time to file a response as a matter of
right by equating his response to a written statement. Order 8 CPC and the time
stipulation therein would not apply to such a response. The Trial Court therefore
committed a patent error in adopting the approach that it did. That apart, the
Trial Court lost sight of the fact that it had granted liberty to the plaintiff to file
an additional pleading as and when the occasion arose. Having granted such
liberty, the Trial Court baldly stated that: 'merely quoting an earlier order of the
Court which express that additional pleading will be considered and decided as
and when the occasion is presented is no justification for granting the leave'. In
effect, the Trial Court nullified its own order as there was no consideration on
merits as to whether it was justifiable to grant leave to the plaintiff to file written
objections to the condone delay petition.
In sum and substance, the Trial Court precluded the plaintiff from
objecting to the condonation of a substantial delay of 935 days in filing an
application to set aside the ex parte judgment and decree. Significantly, in Rani
Kusum (Smt.) Vrs. Kanchan Devi (Smt) and others [2005 (6) SCC 705],
it was pointed out by the Supreme Court that processual law is not to be a tyrant
but a servant, not an obstruction but an aid to justice and procedural
prescriptions are the handmaid and not the mistress, a lubricant, not a resistant,
in the administration of justice. As the plaintiff had only raised a preliminary
objection, being under the misconception that a single application was made
with two prayers and that misconception stood dispelled by the replication filed
by the defendants, there was no delay, so to speak of, on his part in filing his
objections on merit to the condone delay petition. He sought to do so as soon
as his misconception stood dispelled. The Trial Court therefore ought not to have
adopted a wholly untenable and pedantic approach, by misconstruing the
provisions of the Code of Civil Procedure 1908.
[7] The Civil Revision Petition is accordingly allowed setting aside the
order dated 04.09.2018 passed by the Ld. Civil Judge (Senior Division), Chandel,
in Judl. Misc. Case No. 6 of 2018 (Ref: Judl. Misc. Case No. 11 of 2017 in Original
Suit No. 7 of 2014). The Trial Court shall accept the written objections filed by
the plaintiff in response to Judl. Misc. Case No. 11 of 2017, filed for condonation
of 935 days delay in seeking the setting aside of the ex parte judgment and
decree dated 31.03.2015, and consider the said condone delay petition on its
own merits and in accordance with law.
In the circumstances, there shall be no order as to costs.
CHIEF JUSTICE
Indrajeet
