Manipur High Court
Lalfakawma Sailo Aged About 35 Years S/O ... vs Smt. Mary Niangkhannem on 27 December, 2023
Author: A. Guneshwar Sharma
Bench: A. Guneshwar Sharma
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
MC(Cril.Rev.Pet.) No. 9 of 2019
Ref: (i) Cril. Revision Petition No. 25 of 2019
(ii) Cril. Misc. Application No. 4 of 2015
Lalfakawma Sailo aged about 35 years S/o Rohmingliana Sailo of
Kanan Beng, W. Phaileng, Mamit District, Mizoram (Rfn. No.
3900807, 39 Assam Rifles stationed at Lammual, Aizawl District
Mizoram C/O 99 APO) and at present: Paona Bazar, P.O & P.S. -
Imphal, District - Imphal West, Manipur, Pin No. 795001.
...... Applicant/Petitioner
- Versus -
1. Smt. Mary Niangkhannem, aged about 37 years, D/O
Vungkhanpau, a resident of Zoar Veng, Bungmual, P.O. &
P.S. - Churachandpur, District, Churachandpur, Manipur, Pin
No. 795128.
2. Miss Lalchawimawii Sailo, aged about 13 years, D/O Shri
Lalfakawma Sailo, a resident of Zoar Veng, Bungmual, P.O. &
P.S. - Churachandpur, District - Churachandpur, Manipur, Pin
No. 795128.
3. Miss Glorya Saizampuii Sailo, aged about 9 years, D/O Shri
Lalfakawma Sailo, a resident of Zoar Beng, Bungmual, P.O. &
P.S. - Churachandpur, District - Churachandpur, Manipur, Pin
No. 795128.
(...the above names Respondent nos. 2 &
3 being minors, are represented by the
Respondent No. 1 i.e. their natural mother
namely Smt. Mary Niangkhannem)
........O.Ps./Respondents.
MC(Cril.Revn.Petn.) No. 9 of 2019 with
Cril.Revn.Petn. No. 25 of 2019 Page 1
with
Cril. Revision Petition No. 25 of 2019
Lalfakawma Sailo aged about 35 years S/o Rohmingliana Sailo of
Kanan Beng, W. Phaileng, Mamit District, Mizoram (Rfn. No.
3900807, 39 Assam Rifles stationed at Lammual, Aizawl District
Mizoram C/O 99 APO) and at present: Paona Bazar, P.O & P.S. -
Imphal, District - Imphal West, Manipur, Pin No. 795001.
...... Applicant/Petitioner
- Versus -
1. Smt. Mary Niangkhannem, aged about 37 years, D/O
Vungkhanpau, a resident of Zoar Veng, Bungmual, P.O. &
P.S. - Churachandpur, District, Churachandpur, Manipur, Pin
No. 795128.
2. Miss Lalchawimawii Sailo, aged about 13 years, D/O Shri
Lalfakawma Sailo, a resident of Zoar Veng, Bungmual, P.O. &
P.S. - Churachandpur, District - Churachandpur, Manipur, Pin
No. 795128.
3. Miss Glorya Saizampuii Sailo, aged about 9 years, D/O Shri
Lalfakawma Sailo, a resident of Zoar Beng, Bungmual, P.O. &
P.S. - Churachandpur, District - Churachandpur, Manipur, Pin
No. 795128.
(...the above names Respondent nos. 2 &
3 being minors, are represented by the
Respondent No. 1 i.e. their natural mother
namely Smt. Mary Niangkhannem)
........Respondents.
MC(Cril.Revn.Petn.) No. 9 of 2019 with
Cril.Revn.Petn. No. 25 of 2019 Page 2
B E F O R E
HON'BLE MR. JUSTICE A. GUNESHWAR SHARMA
For the Applicant/Petitioner :: Mr. Ajoy Pebam, Advocate
For the respondents/Defendants :: Mr. S. Chitaranjan, Advocate
Date of hearing :: 10.08.2023
Date of Judgment and Order :: 27.12.2023
ORDER (CAV)
[1] Heard Mr. Ajoy Pebam, learned counsel for the
applicant/petitioner and Mr. S. Chitaranjan, learned counsel along with Mr.
A. Priyokumar Sharma, learned counsel for the respondents.
[2] The present application has been filed by the
applicant/petitioner under section 5 of the Limitation Act, 1908 read with
Section 151 of the CPC, 1908 praying for condoning the delay of 940 days
in filing the Cril. Revision Petition.
[3] The applicant/petitioner married respondent No. 1 on
02.12.2004 and they had 2 (two) daughters, who are respondent Nos. 2 &
3 respectively. Due to family dispute, respondent No. 1 approached Ld.
Judicial Magistrate First Class, Aizawl, Mizoram by way of Criminal
Complaint No. 186 of 2012 praying for payment of maintenance and vide
order dated 19.03.2013, the Ld. Judicial Magistrate First Class, Aizawl
allowed the Criminal Complaint by directing the petitioner to pay Rs.
1,500/- (Rupees one thousand five hundred) each to his minor daughters
i.e. respondent Nos. 2 & 3 and to respondent No. 1 (altogether Rs. 4,000/-
MC(Cril.Revn.Petn.) No. 9 of 2019 with
Cril.Revn.Petn. No. 25 of 2019 Page 3
as maintenance allowance). Thereafter, the applicant/petitioner filed an
application being Application No. 81 of 2015 before the Ld. Senior Civil
Judge, Mamit District, Mizoram praying for issuing a Divorce Certificate and
vide order dated 25.03.2015 the Ld. Senior Civil Judge, Mamit District,
Mizoram allowed the Application No. 81 of 2015.
[4] Thereafter, the O.Ps./respondents filed a Cril. Misc.
Application No. 4 of 2015 before the Ld. Family Court, Churachandpur,
Manipur for enhancement of the monthly maintenance allowance which
was passed in Criminal Complaint No. 186 of 2012 and on 28.10.2016, the
Ld. Family Court, Churachandpur passed an impugned order directing the
petitioner to pay the enhance maintenance allowance.
[5] After receiving the impugned order dated 28.10.2016, the
applicant/petitioner searched for an Advocate from Manipur and had taken
some time and finally he found an advocate. Thereafter, the counsel
advised to obtain the necessary documents from the Ld. Judicial
Magistrate First Class, Aizawl, Mizoram and he had taken 2 (two) months
for obtaining necessary documents. The petitioner's counsel took some
time to prepare the case and waited for 45 days for call and she had taken
some time for obtaining all case records of the Churachandpur Court.
[6] Due to long communication gap between the
applicant/petitioner and his counsel and no progress was made in his case,
he decided to engage new counsel. Finally, he found a new counsel and
the new counsel advised him to obtained fresh certified copy of all
MC(Cril.Revn.Petn.) No. 9 of 2019 with
Cril.Revn.Petn. No. 25 of 2019 Page 4
necessary documents from Mizoram. As such, there is delay of 940 days
on the part of the applicant/petitioner in filing Cril. Revision Petition. It is
prayed that delay of 940 days be condoned.
[7] The respondents filed affidavit-in-opposition wherein it is
stated that the revision petition along with the condonation application were
filed after 3 (three) months and no cause is shown as to why the revision
petitioner along with condonation application were filed after 3 (three)
months. It is stated that delay of 940 days in preferring a revision petition is
inordinate in nature and no sufficient cause is shown except mere
allegation against one Grace, advocate, for not preferring the revision
petition within the period prescribed by law. Under Article 131 of the
Limitation Act, 1963, the period of limitation for preferring a revision petition
is 90 days from the date of order sought to be revised. Due to the
petitioner's negligence, inaction and want of bonafide, he could not prefer
the revision petition well within time prescribed by law. It is stated that
sufficient cause as used in Section 5 of the Limitation Act means a cause
beyond the control of the party invoking the said of the Section. The cause
of delay as set forth by the petitioner in his condonation application could
have been avoided if he exercised due care and attention thereof. It is
stated that there is no material to show that the petitioner had appointed
any counsel in connection with his case before the Ld. Family Court,
Churachandpur and there is no material to show that the petitioner taken
action against the said advocate for misconduct or otherwise. The
petitioner fails to show a due sufficient cause for the whole of the delay
MC(Cril.Revn.Petn.) No. 9 of 2019 with
Cril.Revn.Petn. No. 25 of 2019 Page 5
covered by the period between the last day prescribed for filing the revision
and the day on which the revision is filed. It is prayed that the present
application be rejected.
[8] The applicant/petitioner filed rejoinder affidavit to the affidavit-
in-opposition filed by the respondents where it is stated that the Ld. Family
Court, Churachandpur, Manipur without having any jurisdiction to take up
the matter passed the impugned order dated 28.10.2016 whereby directing
the applicant/petitioner to pay the enhanced maintenance allowance per
month to the respondents. When the impugned order was passed, the
applicant/petitioner engaged a lawyer but a fruitful action could not be
taken up and hence, there is no negligence from the part of the petitioner. It
is also stated that the applicant/petitioner has acted diligently and sufficient
case has been explained showing reasons which prevented him from
preferring the Cril. Revision Petitioner during the period of limitation
prescribed in the condonation application so as to advance for substantial
justice. It is prayed that the present application may be allowed and the
delay of 940 days caused in filing the present Cril. Revision Petitioner be
condoned.
[9] Mr. Ajoy Pebam, learned counsel for the applicant submits
that the delay is filing the accompanying petition has been explained and
the same has been caused due to facts narrated as above. He further
explains that since the impugned order is passed by a court without any
jurisdiction, the same can be challenged at any time. It is also stated that
MC(Cril.Revn.Petn.) No. 9 of 2019 with
Cril.Revn.Petn. No. 25 of 2019 Page 6
when serious question of jurisdiction is raised, court ought to have taken a
liberal view. Learned counsel for the applicant refers to the decision in the
case of Prahlad Raut v. All India Institute of Medical Science: 2019
Legal Eagle (SC) 936 @ Para 22 to the point that illegal and void ab initio
order can be challenged at any time. Reliance is also placed on the
decision of Divisional Manager, Plantation Division, Andaman &
Nicobar Islands v. Munnu Barrick: (2005) 2 SCC 237 @ Para 23 to
emphasise that where serious questions of law were raised, the court
should have taken a liberal view on the application of the condonation.
Learned counsel for the applicant further cites the case of Rajnesh v.
Neha: (2021) 2 SCC 324 @ Para 128.3 holding that modification of order
passed in previous proceeding can be done in the same proceeding. It is
prayed that the delay so caused be condoned and the main petition be
heard on merit.
[10] Mr. S. Chitaranjan, learned counsel for the respondents
submits that no proper explanation has been given by the applicant for
condoning 940 days of inordinate delay in filing the accompanying revision
petition. It is stated that except for blaming on some counsel, sufficient
cause has bot been given for not preferring the revision on time. It is
pointed out that the delay so caused is due to the gross negligence on the
part of the applicant. It is clarified that the Family Court at Churachandpur,
Manipur has jurisdiction to entertain the application filed by the
respondents and case laws cited by the applicants are not applicable in the
MC(Cril.Revn.Petn.) No. 9 of 2019 with
Cril.Revn.Petn. No. 25 of 2019 Page 7
facts of the present case. It is prayed that the application for condonation
be rejected with cost.
[11] This Court has considered the material on record, the
submissions made at bar and relevant case laws. In the present case, the
delay of 940 days is somewhat long and the applicant tries to explain the
same to some extent. However, the fact of litigations in States has to be
taken into account. Moreover, the important question of law, ie,
competency of a court in Manipur to enhance/modify the maintenance
awarded by a court in Mizoram, is involved in the present case. In the
circumstances, this Court is inclined to hear the main petition on merit, as
the question of jurisdiction and competency of the court has arisen.
Accordingly, the delay of 940 days in filing the accompanying petition
against the impugned order dated 28.10.2016 passed by learned Family
Court at Churachandpur, Manipur in Cril. Misc. Application No. 4 of 2015 is
condoned, subject to payment of Rs.2000/- in favour of the respondents.
The application is allowed and disposed of.
[12] List Crl. Rev. P. No. 25 of 2019 on 31.01.2024 for further
proceeding.
JUDGE
FR/NFR RAJKUMAR Digitally
RAJKUMAR
signed by
PRIYOJIT PRIYOJIT SINGH
joshua Date: 2023.12.27
SINGH 16:11:39 +05'30'
MC(Cril.Revn.Petn.) No. 9 of 2019 with
Cril.Revn.Petn. No. 25 of 2019 Page 8
