Manipur High Court
Kumari Amom Mema Devi vs Kumari Thokchom Manglembi Devi on 30 October, 2023
ABUJAM Digitally
by ABUJAM
signed
SURJIT SURJIT SINGH
Date: 2023.10.31
SINGH 15:57:00 +05'30' IN THE HIGH COURT OF MANIPUR
AT IMPHAL
MC( MFA) No.1 of 2023
Ref: MFA Case No. of 2023
1. Kumari Amom Mema Devi, aged about 58 years, D/o (Late) A.
Borajaoba Singh of Taobungkhok Awang Leikai, P.O. Langjing, P.S.
Lamphel, Imphal West District, Manipur-795003
... Petitioner
-Versus -
1. Kumari Thokchom Manglembi Devi, aged about 58 Years, D/o (Late)
Th. Gobordhon Singh of Sagolband Nepra Major, P.O. & P.S. Imphal
West District, Manipur - 795001 and Anr.
... Respondents
B E F O R E
HON'BLE MR. JUSTICE MV MURALIDARAN
For the applicant : Mr. K. Modhusudon,Advocate.
For the respondents : None appeared.
Date of Hearing : 09.10.2023
Date of Judgment & Order : 30.10.2023
JUDGMENT &ORDER
CAV
[1] This petition has been filed by the petitioner under
Section 5 of the Limitation Act to condone the delay of 415 days
in filing the appeal against the judgment and decree dated
21.12.2019 passed in O.S.No.105 of 2017 on the file of the Civil
Judge (Senior Division), Imphal West.
MC(MFA) No.1 of 2023 Page 1
[2]. O.S.No.105 of 2017 has been filed by the petitioner
against the respondents for recovery of a sum of Rs.25,07,500/-
together with interest and costs. By the judgment and decree,
the said suit was dismissed on 21.12.2019. Aggrieved by the
same, the petitioner has filed the appeal along with petition for
condonation of the delay of 415 days.
[3]. Mr. K. Modhusudon, the learned counsel for the
petitioner submitted that the judgment and decree of the suit
was not declared on 21.12.2019, however, the e-court status, it
was shown that the said case was disposed of on 21.12.2019 as
uncontested. The learned counsel would submit that the suit was
last listed on 15.5.2019 and fixed on 6.6.2019 for orders.
However, the order was not declared on 6.6.2019 and
subsequently fixed the dates on 10.7.2019, 14.8.2019,
10.9.2019, 19.10.2019, 8.11.2019, 17.12.2019 and 21.12.2019.
Thereafter, the learned counsel for the petitioner requested the
Court regarding the matter on several occasions and the Court
also informed that the matter would be checked, however,
despite several efforts, the case was untraceable.
MC(MFA) No.1 of 2023 Page 2
[4]. The learned counsel further submitted that after
closing the Court since March, 2020 due to Covid-19 pandemic,
the Court works were totally suspended. In the month of
September, 2021 while some restrictions were removed, the
learned counsel for the petitioner approached the concerned staff
of the Court, but the file could not be traceable. On 23.9.2021,
the learned counsel for the petitioner filed a complaint before the
Registrar General of the High Court for giving appropriate
direction to the concerned staff of the trial Court to trace the file
of the suit. However, no order was declared till 23.9.2021. After
the filing of the complaint before the Registrar General on
23.9.2021, the learned counsel for the petitioner approached the
Registry of the Civil Judge on 18.10.2021 and one of the staff
namely Anil informed that the case record was now found,
however, no order is available in the case file. Thereafter, on
26.10.2021, the learned counsel for the petitioner came to know
that the suit was disposed of on 21.12.2019 in favour of the
respondents while he was informed by the said staff. On the
same day, the learned counsel for the petitioner applied the
certified copy of the judgment and the same was received on
8.11.2021.
MC(MFA) No.1 of 2023 Page 3
[5]. The learned counsel for the petitioner submitted that
due to bonafide mistake, the petitioner has filed an appeal
against the judgment and decree dated 21.12.2019 along with
delay condonation application in Judicial Misc. Case No.64 of
2021 on 24.11.2021 before the District Judge, Imphal West. The
learned District Judge condoned the delay and fixed the appeal,
being RFA No.4 of 2022 an fixed the appeal for hearing. At the
time of hearing, the learned counsel for the petitioner withdraw
the said appeal with liberty to file a fresh in the competent Court
having jurisdiction to file the case and, accordingly, RFA No.4 of
2022 was disposed of on 25.1.2023. The learned counsel further
submitted that thereafter, the petitioner has filed the present
appeal before this Court along with application for condonation of
delay.
[6]. According to the learned counsel for the petitioner,
the cause of delay in filing the present appeal was beyond the
capacity of the petitioner, as the case record was traceable only
on 18.10.2021.The petitioner came to know that the case was
disposed of only on 26.10.2021 and due to bona fide mistake, the
petitioner approached to the wrong forum. As such, the matter
MC(MFA) No.1 of 2023 Page 4
was pending before the learned District Judge, Imphal West from
24.11.2021 to 25.1.2023 and the certified copy of the order
dated 25.1.2023 was applied on the same day and received on
6.4.2023.
[7]. The learned counsel for the petitioner urged that the
petitioner is an innocent and have no negligence on her part for
non-filing the appeal in time, but the same was caused by some
unavoidable circumstances and due to bonafide mistake the
appeal was pending before the wrong forum. As such, there was
a delay of 1201 days in filing the present appeal from 21.12.2019
till 05.04.2023. The Hon'ble Supreme Court, vide order dated
10.1.2022 in MA.No.21 of 2022 in Su-motu Writ Petition (c) No.3
of 2020, exempted the period from 15.3.2020 to 28.2.2022 for
limitation. According to the learned counsel, after excluding the
exempted period of 715 days and also the time taken for getting
the certified copies i.e. 71 days, totally 786 days, a delay of 415
days occurred in filing the present appeal. If the said delay is not
condoned and the appeal is not registered, the petitioner will put
to irreparable loss and damage. Further, the said delay is neither
wilful nor wanton. Thus, a prayer has been made to condone the
delay.
MC(MFA) No.1 of 2023 Page 5
[8]. This Court considered the submissions made by the
learned counsel for the petitioner and also perused the materials
available on record.
[9]. The petitioner seeks to condone the delay of 415 days
in filing the appeal on the ground that despite several efforts, the
case file was not traceable before the trial Court and after making
complaint before the Registrar General of this Court on 23.9.2021
and upon the information given by one of the staff of the trial
Court, only on 26.10.2021, the petitioner came to know the
disposal of the suit on 21.12.2019. Thereafter, the petitioner
applied certified copy of the judgment and the same was received
on 8.11.2021. After the receipt of the certified copy of the
judgment, the petitioner has filed the appeal before the District
Judge, Imphal West against the judgment dated 21.12.2019 with
application for condonation of delay. After condoning the delay,
the appeal was numbered as RFA No.4 of 2022 and during the
course of hearing, the petitioner came to know that she has
approached the wrong forum and, accordingly, the petitioner
through her counsel withdrawn the said appeal with liberty to file
a fresh before the competent Court having jurisdiction to file the
MC(MFA) No.1 of 2023 Page 6
same. Accordingly, RFA No.4 of 2022 was dismissed as
withdrawn on 25.1.2023 with liberty to approach the appropriate
forum. Thereafter, the petitioner has filed the present appeal
before this Court with delay condonation application.
[10]. On a perusal of the judgment of the trial Court, it is
seen that the suit was taken up for hearing on 15.5.2019 and the
Court had delivered the judgment on 21.12.2019. It appears
that the trial Court after a gap of seven months has delivered the
judgment in the suit. According to the petitioner, though the
judgment was delivered on 21.12.2019, physically the case
record was not traceable when the learned counsel verified with
the Registry of the trial Court and at the time of verification, the
judgment and decree were not available in the case file.
[11]. According to the learned counsel, due to Covid-19
pandemic, the Court works were totally suspended since March,
2020 and in the month of September, 2021, some restrictions
were removed and during the month of September, 2021 when
the learned counsel for the petitioner approached the trial Court,
he could not able to find the case file. Thereafter, the petitioner
has filed a complaint before the Registrar General of this Court
and upon the intervention of this Court, the case file was traced.
MC(MFA) No.1 of 2023 Page 7
Only on 26.10.2021 only the petitioner's counsel was able to
know the disposal of the suit on 21.12.2019.
[12]. The plea of the petitioner is that due to bona fide
mistake, she has filed the appeal before the District Court and
after knowing the factum of approaching the wrong forum, the
said appeal was withdrawn with liberty to file the fresh before the
appropriate forum. In this regard,no contra evidence has been
produced by the respondents. Therefore, this Court is of the view
that there is some substance in the plea of the petitioner.
[13]. Application under Section 5 of the Limitation Act is
to be construed liberally so as to do substantial justice to the
parties. In the present miscellaneous case, the applicants have
stated the cause for the delay, which is the sufficientcause
[14]. The question as to what would be held to be
sufficient cause while considering the application for condonation
of delay came up for consideration in the case Esha
Bhattacharjee v. Managing Committee of Raghunathpur Nafar
Academy and others, (2013) 12 SCC 649, wherein upon
considering the obligation of the Court while dealing with an
application for condonation of delay and the approach to be
adopted while considering the grounds for condonation, the
MC(MFA) No.1 of 2023 Page 8
principles to be applied were summarized by the Hon'ble
Supreme Court as under:
"21. From the aforesaid authorities the
principles that can broadly be culled out
are:
21.1. (i) There should be a liberal,
pragmatic, justice-oriented, non-pedantic
approach while dealing with an application
for condonation of delay, for the courts are
not supposed to legalise injustice but are
obliged to remove injustice.
21.2. (ii) The terms "sufficient cause"
should be understood in their proper spirit,
philosophy and purpose regard being had
to the fact that these terms are basically
elastic and are to be applied in proper
perspective to the obtaining fact-situation.
21.3. (iii) Substantial justice being
paramount and pivotal the technical
considerations should not be given undue
and uncalled for emphasis.
21.4. (iv) No presumption can be attached
to deliberate causation of delay but, gross
negligence on the part of the counsel or
litigant is to be taken note of.
21.5. (v) Lack of bona fides imputable to
a party seeking condonation of delay is a
significant and relevant fact.
21.6. (vi) It is to be kept in mind that
adherence to strict proof should not affect
public justice and cause public mischief
because the courts are required to be
vigilant so that in the ultimate eventuate
there is no real failure of justice.
21.7. (vii) The concept of liberal approach
has to encapsulate the conception of
reasonableness and it cannot be allowed a
totally unfettered free play.
MC(MFA) No.1 of 2023 Page 9
21.8. (viii) There is a distinction between
inordinate delay and a delay of short
duration or few days, for to the former
doctrine of prejudice is attracted whereas
to the latter it may not be attracted. That
apart, the first one warrants strict
approach whereas the second calls for a
liberal delineation.
21.9. (ix) The conduct, behaviour and
attitude of a party relating to its inaction
or negligence are relevant factors to be
taken into consideration. It is so as the
fundamental principle is that the courts
are required to weigh the scale of balance
of justice in respect of both parties and the
said principle cannot be given a total go by
in the name of liberal approach.
21.10. (x) If the explanation offered is
concocted or the grounds urged in the
application are fanciful, the courts should
be vigilant not to expose the other side
unnecessarily to face such a litigation.
21.11. (xi) It is to be borne in mind that
no one gets away with fraud,
misrepresentation or interpolation by
taking recourse to the technicalities of law
of limitation.
21.12. (xii) The entire gamut of facts are
to be carefully scrutinised and the
approach should be based on the
paradigm of judicial discretion which is
founded on objective reasoning and not on
individual perception.
21.13. (xiii) The State or a public body or
an entity representing a collective cause
should be given some acceptable latitude.
MC(MFA) No.1 of 2023 Page 10
[15]. In Collector, Land Acquisition, Anantnag and another
v. Katiji and others, (1987) 2 CC 107, the Hon'ble Supreme
Court held:
"3. The legislature has conferred the
power to condone delay by enacting
Section 5 [ Any appeal or any application,
other than an application under any of the
provisions of Order XXI of the Code of Civil
Procedure, 1908, may be admitted after
the prescribed period if the appellant or
the applicant satisfies the court that he
had sufficient cause for not preferring the
appeal or making the application within
such period.] of the Indian Limitation Act
of 1963 in order to enable the courts to do
substantial justice to parties by disposing
of matters on "merits". The expression
"sufficient cause" employed by the
legislature is adequately elastic to enable
the courts to apply the law in a meaningful
manner which subserves the ends of
justice -- that being the life-purpose for
the existence of the institution of courts. It
is common knowledge that this Court has
been making a justifiably liberal approach
in matters instituted in this Court. But the
message does not appear to have
percolated down to all the other courts in
the hierarchy. And such a liberal approach
is adopted on principle as it is realized
that:
"1. Ordinarily a litigant does not stand to
benefit by lodging an appeal late.
2. Refusing to condone delay can
result in a meritorious matter
being thrown out at the very
threshold and cause of justice
being defeated. As against this
MC(MFA) No.1 of 2023 Page 11
when delay is condoned the
highest that can happen is that a
cause would be decided on merits
after hearing the parties.
3. "Every day's delay must be
explained" does not mean that a
pedantic approach should be made.
Why not every hour's delay, every
second's delay? The doctrine must
be applied in a rational common
sense pragmatic manner.
4. When substantial justice and technical
considerations are pitted against each
other, cause of substantial justice
deserves to be preferred for the other
side cannot claim to have vested right
in injustice being done because of a
non-deliberate delay.
5. There is no presumption that delay is
occasioned deliberately, or on account
of culpable negligence, or on account of
mala fides. A litigant does not stand to
benefit by resorting to delay. In fact he
runs a serious risk.
6. It must be grasped that judiciary is
respected not on account of its power
to legalize injustice on technical
grounds but because it is capable of
removing injustice and is expected to
do so.
Making a justice-oriented approach from
this perspective, there was sufficient cause
for condoning the delay in the institution
of the appeal. The fact that it was the
"State" which was seeking condonation
and not a private party was altogether
irrelevant. The doctrine of equality before
law demands that all litigants, including
the State as a litigant, are accorded the
MC(MFA) No.1 of 2023 Page 12
same treatment and the law is
administered in an even-handed manner.
There is no warrant for according a step-
motherly treatment when the "State" is
the applicant praying for condonation of
delay. In fact experience shows that on
account of an impersonal machinery (no
one in charge of the matter is directly hit
or hurt by the judgment sought to be
subjected to appeal) and the inherited
bureaucratic methodology imbued with the
note-making, file-pushing and passing-on-
the-buck ethos, delay on its part is less
difficult to understand though more
difficult to approve. In any event, the
State which represents the collective cause
of the community, does not deserve a
litigant-non-grata status. The courts
therefore have to be informed with the
spirit and philosophy of the provision in
the course of the interpretation of the
expression "sufficient cause". So also the
same approach has to be evidenced in its
application to matters at hand with the
end in view to do even-handed justice on
merits in preference to the approach which
scuttles a decision on merits. Turning to
the facts of the matter giving rise to the
present appeal, we are satisfied that
sufficient cause exists for the delay. The
order of the High Court dismissing the
appeal before it as time-barred, is
therefore, set aside. Delay is condoned.
And the matter is remitted to the High
Court. The High Court will now dispose of
the appeal on merits after affording
reasonable opportunity of hearing to both
the sides."
(emphasis supplied)
MC(MFA) No.1 of 2023 Page 13
[16]. In State of Nagaland v. Lipok AO and others, (2005)
3 SCC 752, the Hon'ble Supreme Court held thus:
"15. It is axiomatic that decisions are
taken by officers/agencies proverbially at a
slow pace and encumbered process of pushing
the files from table to table and keeping it on
the table for considerable time causing delay
-- intentional or otherwise -- is a routine.
Considerable delay of procedural red tape in
the process of their making decision is a
common feature. Therefore, certain amount of
latitude is not impermissible. If the appeals
brought by the State are lost for such default
no person is individually affected but what in
the ultimate analysis suffers, is public
interest. The expression "sufficient cause"
should, therefore, be considered with
pragmatism in a justice-oriented approach
rather than the technical detection of
sufficient cause for explaining every day's
delay. The factors which are peculiar to and
characteristic of the functioning of the
governmental conditions would be cognizant
to and requires adoption of pragmatic
approach in justice-oriented process. The
court should decide the matters on merits
unless the case is hopelessly without merit.
MC(MFA) No.1 of 2023 Page 14
No separate standards to determine the cause
laid by the State vis-à-vis private litigant
could be laid to prove strict standards of
sufficient cause. The Government at
appropriate level should constitute legal cells
to examine the cases whether any legal
principles are involved for decision by the
courts or whether cases require adjustment
and should authorise the officers to take a
decision or give appropriate permission for
settlement. In the event of decision to file
appeal, needed prompt action should be
pursued by the officer responsible to file the
appeal and he should be made personally
responsible for lapses, if any. Equally, the
State cannot be put on the same footing as an
individual. The individual would always be
quick in taking the decision whether he would
pursue the remedy by way of an appeal or
application since he is a person legally injured
while the State is an impersonal machinery
working through its officers or servants."
[17]. Refusal to condone the delay would result in denying
the petitioner in preferring the appeal against the judgment and
decree dated 21.12.2019. There is no presumption that delay in
MC(MFA) No.1 of 2023 Page 15
approaching the Court is always deliberate. As held by the
Hon'ble Supreme Court, the word "sufficient cause" under Section
5 of the Limitation Act should receive liberal construction so as to
advance substantial justice.
[18]. The petitioner is not to gain by delay. The reasons
are spelt out in the petition. It is trite that if the technical
considerations and cause for substantial justice are pitted against
each other, the cause for substantial justice has to be sub-
served.
[19]. Applying the aforesaid principles to the case on hand,
it would be seen that the present petition seeking condonation of
delay spelt out the reasons for the delay in filing the appeal and
the reasons specified in that regard could not be held to be
insufficient and no want of bonafides could have been imputed to
the petitioner.
[20]. That apart, the petitioner hasshown sufficient cause
for the delay.In fact, most of the delay period covers with Covid-
19 pandemic and, in this regard, the Hon'ble Supreme Court also
excluded the delay for the period from 15.3.2020 till 28.2.2022 in
Suo-motu Writ Petition (C) No.3 of 2020 dated 10.1.2022 and
after excluding the aforesaid period, the Hon'ble Supreme Court
MC(MFA) No.1 of 2023 Page 16
fixes the limitation period by saying all persons shall have a
limitation period of 90 days from 1.3.2022. The petitioner/State
has also filed calculation sheet along with the petition showing
the number of days delay. In the given facts and circumstances
of the case and also the nature of suit, this Court is of the view
that liberal approach has to be adopted in the present case as the
delay has been sufficiently explained by giving adequate reasons
by the petitioner. The present petition ought not to be rejected
on some hyper technical reasoning.That apart, the petitioner has
shown sufficient cause for the delay.
[21]. For all the reasons stated above and having satisfied
with the explanation for the delay, this Court is inclined to
condone the delay of 415 days in filing the appeal.
[22]. In the result, MC (MFA) No.1 of 2023 is allowed. No
costs.
[23] The Registry is directed to number the appeal if it is
otherwise in order and post for motion.
JUDGE
FR/NFR
Ab.Surjit
MC(MFA) No.1 of 2023 Page 17
