Manipur High Court
Chingsubam Thoiba vs Kangujam Nilachandra Singh on 23 March, 2022
Item No. 15
(Through Video Conferencing)
LAIREN Digitally
signed by
MAYUM LAIRENMAYU
M INDRAJEET
IN THE HIGH COURT OF MANIPUR
INDRAJ SINGH
Date:
AT IMPHAL
EET 2022.03.23
15:58:22
SINGH +05'30'
CRP(CRP.Art.227) No. 2 of 2020
Chingsubam Thoiba
....Petitioner
- Versus -
Kangujam Nilachandra Singh
...Respondent
BEFORE
HON'BLE THE CHIEF JUSTICE MR. SANJAY KUMAR
23.03.2022
This Civil Revision Petition, filed under Article 227 of the Constitution,
arises out of the order dated 05.12.2019 passed by the Ld. Civil Judge (Senior
Division), Imphal West, in Judl. Misc. Case No. 535 of 2019 {Ref: - Original
(Money) Suit No. 252 of 2016}. The petitioner was the applicant in the said
miscellaneous case and the defendant in the suit.
The money suit was filed by the respondent herein under Order 37
Rule 2 CPC for recovery of a sum of ₹. 7,38,000/- (Rupees Seven Lakh & Thirty-
Eight Thousand). Ex parte judgment dated 22.12.2016 was passed by the Trial
Court decreeing the suit. Aggrieved thereby, the defendant filed RFA No. 1 of
2017 before this Court. By order dated 20.08.2018, this Court disposed of the
appeal, declining to grant the relief of setting aside the ex parte decree but
giving liberty to the appellant/defendant to pursue his remedy in terms of Order
37 Rule 4 CPC. Thereupon, the defendant filed Judl. Misc. Case No. 506 of 2018
in the suit to set aside the ex parte decree dated 22.12.2016. He also filed Judl.
Misc. Case No. 582 of 2018 seeking stay of the proceedings in Execution Case
No. 8 of 2017 filed in relation to the ex parte decree.
By common order dated 18.05.2019, the Trial Court rejected both
applications. Perusal of the said order reflects that the Trial Court found that
'special circumstances' had been made out by the defendant in terms of Order
37 Rule 4 CPC but he had failed to plead facts which would entitle him to grant
of leave to defend the suit. The Trial Court therefore recorded that it was not
inclined to set aside the ex parte decree as no grounds were presented which
would entitle the defendant to leave to defend the money suit filed under Order
37 CPC. Having stated so on the merits of the matter, the Trial Court observed
that Judl. Misc. Case No. 506 of 2018 was also barred by limitation as it had not
been filed within 30 days from the date of the decree, as per Article 116 of the
Limitation Act, 1963.
Aggrieved by this order, the defendant preferred CRP (CRP.Art.227)
No. 42 of 2019 before this Court. Strangely, for reasons unknown, he chose to
withdraw the same. The order dated 21.08.2019 passed in the CRP
demonstrates that the learned counsel for the defendant stated that the matter
may be closed as withdrawn with liberty to move the Court below for appropriate
relief. Pursuant to such liberty, the defendant filed Judl. Misc. Case No. 535 of
2019 in the suit under Section 5 of the Limitation Act, 1963, seeking condonation
of the delay of 2 years 7 months and 25 days in filing a petition to set aside the
ex parte decree dated 22.12.2016. This application was ostensibly filed under
Order 37 Rule 4 CPC. However, by order dated 05.12.2019, the Trial Court
dismissed the said miscellaneous case. It is this order that is subjected to
challenge in the present revision.
Heard Mr. N. Surendrajit, learned counsel for the petitioner/
defendant; and Mr. F.A. Khalid, learned counsel for the respondent/plaintiff.
Mr. N. Surendrajit, learned counsel, would argue that as the Trial
Court had dismissed the earlier miscellaneous case on the ground that it was
barred by limitation, the defendant chose to file the fresh application seeking
condonation of delay.
This argument lacks merit. The earlier order dated 18.05.2019 passed
in Judl. Misc. Case No. 506 of 2018 was on the merits of the matter inasmuch
as the Trial Court, having found special circumstances in terms of Order 37 Rule
4 CPC, held that the defendant had failed to make out a case for grant of leave
to defend the suit. Therefore, the dismissal of that miscellaneous case was not
on the technical ground of limitation alone but also on merits. This is the aspect
that was specifically taken note of by the Trial Court while dealing with the
subject condone delay petition. Having suffered the earlier order dated
18.05.2019 on merits, the defendant could not ignore the same and seek to
reopen the issue before the Trial Court for fresh consideration. As already noted
supra, for reasons best known to him, he chose to file a revision against the said
order but withdrew it with liberty to approach the Trial Court once again.
The Trial Court was therefore fully justified in holding that the fresh
application could not be considered on merits in the light of the earlier order,
which had attained finality.
This Court therefore finds no error of law having been committed by
the Trial Court warranting exercise of superintendence under Article 227 of the
Constitution.
The Civil Revision Petition is devoid of merit and is accordingly
dismissed.
In the circumstances, there shall be no order as to costs.
A copy of this order shall be supplied online or through whatsapp to
the learned counsel for the parties.
CHIEF JUSTICE
Indrajeet
