Manipur High Court
Shri Ahongsangbam Bheigashing Singh 68 ... vs Shri Leitanthem Senapati Singh Aged 61 ... on 4 April, 2024
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
C.R.P. NO. 5 OF 2015
1. Shri Ahongsangbam Bheigashing Singh 68 years son of
(late) A. Tomba Singh now died by his LRs.
i. Smt. Ahongsangbam Ongbi Sobita Devi aged
about 72 years, W/O (L) Ahongsanbam
Bheigashing Singh.
ii. Smt. Ahongsangbam Ningol Laishram ongbi
Victoria Devi, aged about 35 years W/O Shri L.
Rabi (in addition to the Petitioner Nos. 2 to 6).
2. Shri Ahongsangbam Khelendro Singh 38 years, son of A.
Bheigyaching Singh.
3. Shri Ahongsangbam Norendro Singh 35 years, son of A.
Bheigyaching Singh.
4. Shri Ahongsangbam Biasheshwar Singh, 33 years, son
of A. Bheigyaching Singh.
5. Shri Ahongsangbam Anand Singh, 30 years, son of A.
Bheigyaching Singh.
....... All are residents of Heirok Part - III, Lam Mari
Phangba Leirak, P.O Wangjing, P.S. Heirok, District,
Thoubal, Manipur.
.... Petitioners
- Versus -
1. Shri Leitanthem Senapati Singh aged 61 years, son of (L)
L. Mani Singh of Heirok Part - III, Lam Mari Phangba
Leirak, P.O. Wangjing, P.S. Heirok, District Thoubal,
Manipur.
.... Respondent
BEFORE
HON'BLE MRS. JUSTICE GOLMEI GAIPHULSHILLU
For the petitioner : Mr. T. Rajendra, Sr. Advocate
For the respondents : K. Pradeep, Advocate
Date of hearing : 22.02.2024
Date of order : 04.04.2024
CRP No 5 of 2015 Page 1
JUDGEMENT & ORDER
(CAV)
[1] Heard Mr. T. Rajendra, learned senior counsel appearing
for the petitioner.
[2] The present Civil Revision Petition has been filed by the
petitioner u/s 115 of the Civil Procedure against the order dated
20.08.2015 of the Ld. Civil Judge, Junior Division, Thoubal passed in
Judl. Misc. Case No. 53 of 2015 arising out of Original Suit No. 16 of
2014 praying for passing an interim order for staying the further
proceeding of Judl. Misc. Case No. 54 of 2015 pending before the Ld.
Civil. Judge, Junior Division, Thoubal during the pendency of the
present revision petition and to set aside the impugned order dated
20.08.2015.
[3] The respondent as plaintiff instituted Original Suit No. 9 of
2011/16 of 2014 against the petitioners as defendants before the Ld.
Civil. Judge, Junior Division, Thoubal praying for the reliefs sought
for in the plaint and the petitioners as defendants contested the suit
by filling their joint written statement.
[4] After repeated adjournments and failure on the part of
the plaintiff to appear before the Ld. Civil Judge, Junior Division,
Thoubal, the Ld. Civil Judge Junior Division, Thoubal finally dismissed
the Original Suit No. 9 of 2011/16 of 2014 on default due to non-
appearance of the plaintiff on 13.11.2014. After dismissal of the suit
a demarcation was conducted by the Sub-Deputy Collector, Heirok
and its staff in presence of the police and the parties and proper
demarcating line between the lands of the petitioners and
respondent was properly indentified vide proceedings dated
28.1.2015 of the SDC, Heirok in Demarcation Case No.
24/SDC/(HRK) dated 30.12.2014. After the said demarcation, the
petitioners have also constructed proper pucca fencing in the
boundary line between their lands and the lands of the respondent
CRP No 5 of 2015 Page 2
and also their dwelling house in their land wherein they are also now
living. In the said demarcation proceedings one L. Shanta Singh who
is the son of the respondent signed representing the respondent in
the said proceedings.
For conveniences sake section 115 CPC is extracted herein
below:
"115. Revision.-[(1)] The High Court may call for the record of
any case which has been decided by any Court subordinate to
such High Court and in which no appeal lies thereto, and if
such subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law,
or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally
or with material irregularity,
the High Court may make such order in the case as it thinks fit:
[Provided that the High Court shall not, under this section,
vary or reverse any order made, or any order deciding an
issue, in the course of a suit or other proceeding, except where
the order, if it had been made in favour of the party applying
for revision, would have finally disposed of the suit or other
proceedings.]
[(2) The High Court shall not, under this section, vary or
reverse any decree or order against which an appeal lies either
to the High Court or to any Court subordinate thereto.]
[(3) A revision shall not operate as a stay of suit or other
proceeding before the Court except where such suit or other
proceeding is stayed by the High Court.]".
[5] The respondent/plaintiff then instituted Judl. Misc. Case
No. 8 of 2015/10 of 2015 of the Ld. Civil Judge, Junior Division,
Thoubal on 12.02.2015 praying for restoring the suit by setting aside
the dismissal order dated 13.11.2014. The main ground raised by
the respondent in his Judl. Misc. Case No. 8 of 2015/10 of 2015 is
that he was out of station from 10.11.2014 to 26.12.2014 for the
timber season to cut woods and he instructed his son to contact the
conducting counsel and his son failed to appear on 13.11.2014 and
CRP No 5 of 2015 Page 3
their counsel could not appear as he had gone to Deputy
Commissioner, Thoubal in connection with the revenue case and
when the counsel arrived at the Court at 1:28 P.M. he found that the
case was dismissed at 12:55 A.M. On 07.05.2015, the petitioners
filed their written objection to the said Judl. Misc. Case by denying
the allegations of the respondent and also stating the facts of the
Demarcation proceedings conducted on 28.1.2015 and also the
constructions of pucca fencing. The petitioners also submitted in
their written objection that the said Judl. Misc. Case No. 10 of 2015
is barred by limitation. After hearing the parties, the Ld. Civil Judge,
Junior Division, Thoubal passed order dated 8.05.2015, dismissing
the same as barred by limitation. No further appeal or revision has
been preferred against the order dated 08.05.2015 meaning that the
same has attained its finality.
The last operative portion of the order dated 08.05.2015
passed in Judl. Misc. Case No. 10 of 2015 is extracted herein below:
"Perused the application and materials on record. Heard both
Counsels. As per record, the present suit being O.S. No.16 of
2014 was dismissed on default on 13.11.2014. As per para
No.2 of the application, the Plaintiff's Counsel arrived at the
Court on the said date of dismissal at 1:28 pm. only to find that
the case had been dismissed at 12:55 am. In other words, the
plaintiff's Counsel became aware of the dismissal Order dated
13.11.2014 on the day itself. However, apparently the present
restoration application has been filed on 12.02.2015. As per
Article 122 of the Indian Limitation Act, 1963, the period of
limitation to restore a suit dismissed for default of appearance
is thirty (30) days and the limitation commences from the date
of dismissal. Apparently the present restoration application has
been filed after the lapse of limitation period of 30 days. No
reason is found disclosed in the restoration application
explaining the delay in filing the said restoration application. In
such circumstance, the present application is dismissed as
being barred by Limitation."
On perusal of the above operative portion of the order of
the learned Civil Judge (Jr. Divn.), Thoubal, it is ascertained that the
CRP No 5 of 2015 Page 4
learned counsel as well as the respondent/plaintiff have knowledge
about the dismissal order and inspite of knowing the date of
dismissal order, the respondent/plaintiff filed the restoration
application without condonation of delay application which is
mandatory as per article 122 of the Indian Limitation Act, 1963.
It is also seen that the present petitioners/defendants in
their written objection mentioned about the bar of limitation in filling
the restoration application.
[6] The respondent/plaintiff further filed an application being
Judl. Misc. Case No. 53 of 2015 for condoning the delay of 165 days
in filing the connected restoration case which has been registered as
Judl. Misc. Case No. 54 of 2015. The grounds given in the said Judl.
Misc. No. 53 of 2015 is that he was out of station from 10th
November, 2014 to 26th December, 2014 and he underwent
treatment for Acute Pulmonary Infection and Urinary Calcute Stones
and later operated upon at the Community Health Centre, Heirok
and as advised by Dr. Y. Nokul Singh in charge CHC Heirok for bed
rest from 28.12.2014 to 12.01.2015. Such fact was never mentioned
in the Judl. Misc. Case No. 10 of 2015 which was filed earlier on
12.02.2015 even though such facts are there prior to such alleged
facts. The petitioners/defendants filed written statement to the Judl.
Misc. Case No. 53 of 2015 by clearly stating that the documents so
enclosed by the respondent/plaintiff are fabricated and
manufactured document as on the very day i.e. 28.12.2014 on which
day the respondent/plaintiff was alleged to have been treated by Dr.
Y. Nokul Singh, the doctor himself was not present at the hospital
and further the said day was also a Sunday. Further, the Community
Health Centre, Heirok has no facilities for doing operation and
therefore the said allegations of having operation at Community
Health Centre, Heirok is absolutely false.
CRP No 5 of 2015 Page 5
The respondent/plaintiff instead of filling appeal or
revision against the dismissal order of restoration petition which was
dismissed on the ground of barred by limitation filed another
restoration petition being Judl. Misc. Case No. 53 of 2015 for
condoning the delay of 165 days in filling the connected restoration
petition being Judl. Misc. Case No. 54 of 2015.
On perusal of both the Judl. Misc Cases as mentioned
above it was found that the grounds taken by the
plaintiff/respondent are not matching with each other, this fact is
also mentioned in the written statement filled by the
petitioners/defendants and the same was filled with the connected
documents.
[7] Learned counsel for the petitioners/defendants further
submits that the Ld. Civil Judge, Junior Division, Thoubal after
hearing the parties however came to an erroneous conclusion and
disposed of the Judl. Misc. Case No. 53 of 2015 by allowing the
same. After disposal of Judl. Misc. Case No. 53 of 2015, the
application for restoration of Original Suit No. 9 of 2011/10 of 2014
being Judl. Misc. Case No. 54 of 2015 was taken up and the same
was fixed on 18.09.2015.
The learned Civil Judge (Jr. Divn.), Thoubal on her part by
relying upon the para 3 of the Hon'ble Supreme Judgment in
Collector, Land Acquisition, Anantnag and anr V. Mst. Katiji and Ors.
(1987) 2 SCC 107 allowed the said condonation application filed by
the plaintiff/respondent and the operative portion of the order dated
20.08.205 is extracted herein below:
"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 CPC, 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
CRP No 5 of 2015 Page 6
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.....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 when delay is condoned the
highest that can happen is that a cause would be decide 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.
..............."
5. Keeping in view the above position of law and applying the
same in the facts and circumstances of the case, I am of the
considered opinion that the cause shown by the applicant for
condonation of the delay in filing the said restoration
application is sufficient cause. Accordingly, the present
application for condonation of the delay is hereby allowed so as
to advance the cause of justice. However, this condonation is
subject to the payment of Rs.500/- by the applicant to the OP
as costs for the delay. This application stands disposed of".
It is indeed settled principal of law that sufficient caused
as prescribed in section 5 of Indian Limitation Act must be liberally
CRP No 5 of 2015 Page 7
construed so as to advance the cause. It is also settled principal of
law that to do substantial justice to the parties, Court must disposed
of the matters/cases on merit. However, in the instant case the
present petitioners/defendants asserted their objection by relying
upon the documentary evidences. But, on perusal of the order of the
learned Civil Judge, (Jr. Divn.), Thoubal, the learned court failed to
discuss the reliability or otherwise of the assertion made by the
petitioners/defendants to the documents filed by the
respondent/plaintiff. This fact is seriously asserted by the
petitioners/defendants by stating in the written statement that the
documents so enclosed by the respondent/plaintiff are fabricated
and on the very day i.e. 28.12.2014 on which day the
respondent/plaintiff was alleged to have been treated by Dr. Y.
Nokul was manufactured document as the doctor himself was not
present at the hospital and also the said day was a Sunday.
Furthermore, it was asserted that the Community Health Centre,
Heirok has no facility for doing operation. In the circumstances, it
appears and evident that the learned Civil Judge, (Jr. Divn.), Thoubal
have acted in the exercise of its jurisdiction illegally or with material
irregularity.
[8] Being deeply aggrieved, the petitioners/defendants filed
the present Revision Petition for quashing the impugned order dated
20.08.2015 on the following grounds:-
(i) That, the Ld. Civil Judge, Junior Division, Thoubal passed
the impugned order dated 20.08.2015 by committing material
irregularities and illegalities and also by not properly appreciating the
case of the petitioners. In short, the impugned order dated
20.08.2015 is passed without relying on the available records.
(ii) That, a prayer for condonation of delay is not a mere
formality and should be supported by valid and tangible grounds.
However, the respondents while filing Judl. Misc. Case No. 10 of
CRP No 5 of 2015 Page 8
2015 on 12.02.2015 did not even made a whisper of the said
statements made in Judl. Misc. Case No. 53 of 2015 although such
alleged facts of treatment are well before the filing of Judl. Misc.
Case No. 10 of 2015. It prima facie shows that the said claims of the
respondents made in Judl. Misc. Case No. 53 of 2015 are not correct
but are manufactured ones.
(iii) That, the attendance Register filed in the written
objection of the petitioners in Judl. Misc. Case No. 53 of 2015, it
clearly shows that the said Dr. Y. Nokul Singh was never present on
20.08.2014 till 12.01.2015 except on 1st and 2nd January, 2015.
Therefore, the said alleged claim of the respondent is nothing but a
false statement to misguide the Court.
(iv) That, the Community Health Centre, Heirok has no facility
for doing operation for removing stones. Therefore, the allegation of
having operation at Community Health Centre, Heirok is totally false.
The Medical Certificate enclosed in Judl. Misc. Case No. 53 of 2015
are also fabricated as the doctor himself was not available on
28.12.2014 and the other dates. The impugned order dated
20.08.2015 therefore is bad in law being passed against the record.
(v) That, the Ld. Civil Judge, Junior Division, Thoubal was of
the wrong view that even though liberal approach should be adopted
in condoning delay, it should not be to that extent of filing
application by committing fraud and also by manufacturing and
fabricating documents. A prayer for condonation of delay should not
always be taken as a mere formality.
(vi) That, for making a prayer condoning for delay, the party
should come with clean hands and by disclosing all the facts which
does not enable him to approach the Hon'ble Court within time. The
respondent never filed the condonation application being Judl. Misc.
Case No. 53 of 2015 and the connected restoration application being
Judl. Misc. Case No. 54 of 2015 respectively with clean hands.
CRP No 5 of 2015 Page 9
(vii) That, the Ld. Civil Judge, Junior Division, Thoubal has
already passed order dated 08.05.2015 for dismissing the restoration
application being Judl. Misc. Case No. 10 of 2015 dismissing the
same as barred by limitation. Therefore, the said matter has been
raised, heard and has been finally decided. Therefore, the
subsequent Judl. Misc. Case No. 53 of 2015 is barred by the principle
of res-judicata.
(viii) That, the Ld. Civil Judge, Junior Division, Thoubal by
order dated 08.05.2015 has already held that the prayer for
restoration of the suit of the respondent is barred by limitation. The
said order dated 08.05.2015 is not taken in appeal or revision before
the High Court. Therefore, the same has attained its finality. In such
circumstances, the subsequent Judl. Misc. Case NO. 53 of 2015 and
Judl. Misc. Case No. 54 of 2015 respectively are not maintainable.
(ix) That, the Ld. Civil Judge, Junior Division, Thoubal passed
the impugned order dated 20.05.2015 by causing miscarriage of
justice to the petitioners.
(x) That, the Judl. Misc. Case No. 53 of 2015 and Judl. Misc.
Case No. 54 of 2015 are in the abuse of the process of the Court and
the same ought to have been dismissed in limine.
(xi) That, there are other sufficient grounds for allowing the
present revision petition by setting aside the impugned order dated
20.08.2015 and the same shall be submitted at the time of hearing.
[9] The petitioners/defendants also in support of their case
cited the following Hon'ble Supreme Court Judgment:
1. AIR 1994 SC 853 (Para 7 & 8)
Fraud by litigants. Guilty Person is liable to be thrown out
at any stage. One who come to court must come with
clean hand.
2. AIR 1991 SC 1726 (Para 2)
A Litigant seeking a discretionary relief must come with
frank and full disclosure of facts. If he fails to do so and
CRP No 5 of 2015 Page 10
suppress materials facts, his application is liable to be
dismissed.
3. (2013)9 SCC 92 (Paras 10,12,14,24,27 and 28)
Condonation application for filing SLP before supreme
court. Deliberate concealment of material facts and
misleading statement made. Application likely to be
rejected.
4. (2013)14 SCC 81 (Paras 2D,8,9,12,15 and 16)
Sufficient cause cannot be liberally interpreted, if
negligence, inaction or lack of bona fides is attributed to
the party. Even though limitation may harshly affect the
rights of the parties, but it has to be applied with all his
reason when prescribed by statutes. The law is harsh but
it is the law.
The Honble Supreme Court in (2010) 8 Supreme Court
Cases 685: [Balwant Singh (Dead) vs Jagdish Singh & Ors] whilst
refusing to condone the delay of 778 days ..............observed that;
"It was observed that though sufficient cause should be
construed in a liberal manner, the same could not be equated
with doing injustice to the other party. For sufficient cause to
receive liberal treatment, the same must fall within reasonable
time and through proper conduct of the concerned party. The
Court emphasised that for such an application for condonation
to be seen in positive light, the same should be bona fide,
based on true and plausible explanations, and should reflect
the normal conduct of a common prudent person. Further, the
explained delay should be clearly understood in
contradistinction to inordinate unexplained delay to warrant a
condonation."
In the instant case, the observation made above by the
Hon'ble Supreme Court is applicable in the facts and circumstances
as narrated above.
CRP No 5 of 2015 Page 11
[10] When the matter was taken up on 08.12.2023, Mr K.
Pradeep, learned counsel appearing on behalf of the respondent
submitted that the original suit pending before the subordinate
court was already disposed of, as such, he needs instruction from
his client/respondent whether he is interested in pursuing the case
pending before the Hon'ble High Court or not, since the matter is
pending from 2015 onwards. However, the learned counsel
appearing on behalf of the respondent failed to appear before the
Court from that day onwards.
[11] On perusal of records, it is seen that the respondent
failed to turn up before this Court on several occasion as such the
present order is passed basing on the available facts and
circumstances of the case and relying on the observations made by
the Hon'ble Supreme Court.
It is evident and clear that the parties as well as the
learned counsel for the respondent have knowledge of the date
fixed and also have knowledge of the order of dismissal of the
case.
It is also evident that the learned Civil Judge, (Jr. Divn.),
Thoubal inspite of the petitioners' serious allegation of mis-
representation of facts by the respondent regarding his illness and
subsequent operation conducted on him and the documents filed in
this regard as fabricated, allowed the condonation of delay filed by
the respondent without considering the allegation made thereof
and the documents filed, thereby committing in the exercise of its
jurisdiction illegally or with material irregularities.
[12] In the facts and circumstances and in the light of the
discussion made above and for the reasons given therein,
reluctantly, this Civil Revision Petition is allowed. The impugned
order dated 20.08.2015 passed in Judl. Misc. Case No. 53 of 2015
CRP No 5 of 2015 Page 12
passed by the learned Civil Judge, (Jr. Divn.), Thoubal is set aside.
The learned Civil Judge, (Jr. Divn.), Thoubal is directed to take
fresh consideration of the case basing on the facts and
circumstances and the documents filed by the parties.
Accordingly with the above observation and direction this
Civil Revision Petition is disposed of parties are to bare their own
cost.
Send the case record to the Court of Civil Judge, (Jr.
Divn.), Thoubal for fresh consideration of the case basing on the
fact and circumstances and the documents filed by the parties.
JUDGE
FR/NFR
Lucy
LUCY Digitally
signed by
GURU LUCY
GURUMAYUM
MAYU Date:
2024.04.08
14:46:27
M +05'30'
CRP No 5 of 2015 Page 13
