Raid Laban Dorbar vs . Dorbar Shnong Of Lawsohtun & Anr.
2022 Latest Caselaw 192 Meg

 Serial No. 30
 Regular List
                        HIGH COURT OF MEGHALAYA
                              AT SHILLONG

CRP No. 41 of 2019
                                               Date of Decision: 04.05.2022

Raid Laban Dorbar               Vs. Dorbar Shnong of Lawsohtun & Anr.

Coram:
                 Hon'ble Mr. Justice H. S. Thangkhiew, Judge


Appearance:
For the Petitioner(s)       :     Mr. S. Chakrawarty, Sr. Adv. with
                                  Mr. E. Slong, Adv.

For the Respondent(s)       :    Mr. C.H. Mawlong, Adv. (For R 1)

Mr. L. Khyriem, Adv. (For R 2)

i) Whether approved for reporting in Yes/No Law journals etc:

ii)    Whether approved for publication                     Yes/No
       in press:

                   JUDGMENT AND ORDER (ORAL)

1. This instant civil revision application has been filed under Rule

6 of the High Court of Meghalaya (Jurisdiction over District Council

Courts) Order, 2014, praying for setting aside the order 25.09.2019, passed

by the Judge, District Council Court, in Title Suit No. 1 of 2016, wherein

two petitions namely; No. 125 of 2019 for condonation of delay and No. 126

of 2019 for setting aside the dismissal order dated 13.08.2018, were

dismissed.

2. The facts necessary for consideration is that a Title Suit being

Title Suit No. 2 of 2013 had been instituted by the petitioner/plaintiff before

the Subordinate District Council Court, Shillong, which thereafter was called

before the Judge, District Council Court, on an application under Section

32(b) and was re-registered as Title Suit No. 1 of 2016. When the matter was

taken for adjudication by the Judge, District Council Court, the

plaintiff/petitioner at that relevant point of time, being aggrieved had

approached this Court, and this Court by order dated 04.05.2018 passed in

CRP No. 29 of 2017, had observed that there was no illegality with the order

of the Judge dated 16.06.2017, but however, remanded the same for fresh

consideration.

3. With the matter situated thus, the proceedings was taken up by

the Judge, District Council Court, and on the non-appearance of the

plaintiff/petitioner, the matter came to be dismissed for default by the order

dated 13.08.2018, wherein it was recorded that the non-appearance was in

spite of the fact that the notice had been received by the plaintiff/petitioner.

4. The case of the petitioner is that they came to the knowledge of

the dismissal for default of the Suit only on 03.12.2018, and obtained the

certified copy thereof, on 09.12.2018. After consultation and deliberation,

considerable delay was occasioned, and finally the application in question

i.e. for setting the dismissal order came to be filed on 12.04.2019.

5. The explanation as put forth by the petitioner and observed by

the Judge, District Council Court, was that the notice was received by one

D.S. Mawlong, who was the Vice-President of the Dorbar, who was in ill-

health and also had subsequently expired. This in fact, is the entire

explanation offered by the petitioner, which they contend had prevented

them from taking part in the proceedings, after remand of the matter from

this Court. With regard to the number of days, the stand of the petitioner is

that the observation of the Judge that there was a delay of 136 days was

incorrect, which in fact after computation comes only to 106 days.

6. Mr. S. Chakrawarty, learned Senior counsel assisted by Ms. E.

Slong, learned counsel for the petitioner submits that the non-appearance of

the plaintiff/petitioner before the Lower Court was caused by the fact that

the notice was not properly served, a reason which was beyond their control.

He therefore prays that the impugned order be set aside.

7. Mr. C.H. Mawlong, learned counsel for the respondent No. 1,

apart from the other submissions submits that the petition deserves no

consideration as is apparent from the negligent conduct of the

petitioner/plaintiff as reflected in the order of the Lower Court itself. With

regard of the service of notice which has been recorded by the Lower Court,

he fairly submits that he has nothing to say on the matter and that he has no

idea as to who the signature, which appears on the process notice dated

04.06.2018 belongs to. Though, he has strong reservations as to the

maintainability of the Suit itself before the Trial Court, since it is not the

matter under consideration in the present application, no submissions have

been advanced.

8. Mr. L. Khyriem, learned counsel for the respondent No. 2

submits that he has been arrayed as a proforma respondent, as such he has

no submissions to make.

9. I have heard learned counsel for the parties and perused the

materials available on record. It appears that the entire issue is on the factum

of service of notice and whether the petitioner/plaintiff had shown sufficient

cause to be given the benefit of condonation of delay in preferring the

application for setting aside the dismissal order.

10. On the earlier occasion, this Court had sought the assistance of

the counsels for determination as to whether the signature that appears at

Page-148 of the record, which is the process notice dated 04.06.2018, can

be said to be the signature of D.S. Mawlong, as claimed by the petitioner.

Both the learned counsel for the parties, have examined the said signature

and have expressed their inability to discern as to whose signature is on the

notice. In this view of the matter, though there is a finding before the Lower

Court that D.S. Mawlong is the recipient of the notice, this has not been

adequately corroborated from the materials available.

11. With regard to the number of days of delay, as submitted earlier,

the petitioner's contention is that since D.S. Mawlong had received the

notice, they were not aware of the resumption of proceedings and as such,

no immediate action could be taken to revive the said Suit when it was

dismissed. It is noted from the submissions of the petitioner that they came

to come to learn about the dismissal order on 03.12.2018, and the Death

Certificate annexed to the petition also shows that D.S. Mawlong had expired

on 09.12.2018, i.e. after they had come to the knowledge about the dismissal

of the Suit which throws up other questions.

12. However, considering the facts and circumstances surrounding

the case, it is seen that no concrete reliance can be placed on any incident or

event that can be said to have had prevented the petitioner/plaintiff from

filing the application within time. What is revealed however,

notwithstanding any other circumstances as narrated above, is the fact that

the notice cannot be said to have been properly served upon the

petitioner/plaintiff on the remand of the said matter to the Judge, District

Council Court by this Court. Faced with this situation, this Court in the

interest of justice, has no other alternative but to exercise its discretion and

apply the principles of justice, equity and good conscience, by holding that

the service of notice does not seem to be adequate, and that the Suit is fit to

be restored to file.

13. In this view of the matter, the instant revision application is

allowed, the delay of 106 days is condoned and the Title Suit No. 1 of 2016

is restored back to file. Though the matter has been pending for a

considerable period of time, the question as to whether the matter should be

heard by the Judge, District Council Court itself or be endorsed to any other

Court, is still to be addressed.

14. The parties are put to notice and are directed to appear before the

Court of the Judge, District Council Court on 25.05.2022 at 10:30 A.M for

resumption of the proceedings.

15. The instant civil revision application is accordingly disposed of.

16. The Registry is directed to transmit back the Lower Court case

records immediately.

JUDGE

Meghalaya 04.05.2022 "V. Lyndem-PS"