Courts Should Examine Conducts Of Parties "All Through" While Deciding Condonation/ Restoration Applications: Manipur High Court

While denying relief to the petitioners, a Single Judge Bench of Chief Justice Sanjay Kumar observed,

"…this Court would be justified in examining the conduct of the party all through to ascertain whether 'the failure to appear' was a chronic phenomenon and not a stray instance. As pointed out by the Supreme Court, the effort of the Court should be to see that justice is done, which would include justice to both the parties to the litigation. That being so, a defendant cannot be penalized and made to suffer the rigours of litigation over decades, despite the plaintiff being lax and careless in prosecuting the case."

Factual Background:

The original plaintiffs (original petitioners herein) filed a suit on 06.11.2006 seeking declaration of their title in relation to the suit schedule homestead land; for cancellation of mutation; and for a permanent injunction restraining the defendants from dispossessing the plaintiffs or otherwise causing injury in relation to the suit schedule land. The written statement was filed by the defendants on 16.02.2007. The temporary injunction application filed by the plaintiffs was rejected by the Trial Court on 30.06.2008.

Issues were framed by the Trial Court on 16.08.2008. Thereafter, no steps were taken for commencing the trial and the suit itself came to be dismissed on 30.06.2010 for non-prosecution. The restoration petition filed on 29.07.2010 was allowed on payment of costs, vide order dated 03.03.2011. The suit was again dismissed for default on 08.11.2011 and was once again restored on 31.12.2011 on payment of costs.

The first plaintiff died on 08.03.2012. His legal representatives, viz., his widow, 2 sons and 2 daughters, filed an application ("LR application") seeking to be brought on record. This application was filed on 20.04.2012. However, it was dismissed on 27.04.2012 for non-appearance. On the same day, the suit was again dismissed for default. Further, an application was filed on 23.05.2012 for restoration of the suit. This application was dismissed for default on 17.01.2013. Again, an application was filed on 19.01.2013 seeking restoration of the suit.

As regards the dismissal of the LR application, the Legal Representatives ("LR") filed an application for restoration of the LR application on 09.07.2013 and on the same day, another application was filed for condonation of delay on their part in filing the restoration application. However, they did not mention in their restoration application the exact number of days delayed.

The learned Civil Judge (Senior Division) dismissed all these miscellaneous applications on 13.06.2014. Resultantly, they assailed that order by filing Criminal Revision Petition ("CRP"). At the same time, other two original plaintiffs have assailed another order, passed on the same date by the same court, through a separate CRP. Both the CRPs were tagged together in the instant matter.

Contentions:

The counsel for the petitioners argued that the Trial Court ought not to have been hyper-technical in its approach while dealing with the subject applications. He submitted that procedure is only the hand-maid of justice and not its mistress and, therefore, the Trial Court should have been more lenient while considering the miscellaneous cases. He further asserted that the failure of the counsel of the petitioners to be present on time before the learned Trial Judge, is a mistake attributable to him and that the parties should not be punished for such a mistake on the part of their counsel.

He placed reliance upon G.P. Srivastava v. R.K. Raizada & Ors., (2000) 3 SCC 54, wherein the Supreme Court considered the scope of 'sufficient cause' in the context of Order 9 Rule 13 CPC. It was held that unless sufficient cause is shown for non-appearance of the defendant on the date of hearing, the Court would have no power to set aside an ex parte decree and that the words, 'was prevented by any sufficient cause from appearing' must be liberally construed to enable the Court to do complete justice between the parties, particularly when no negligence or inaction is imputable to the erring party.

While stressing upon the need to restrain from victimising the petitioners for the fault of their counsel, he cited the observation made by the Apex Court in Smt. Lachi Tewari & Ors. v. Director of Land Records & Ors., 1984 (Supp) SCC 431, wherein the Court relied on its earlier observations in Rafiq and another v. Munshilal & Anr., (1981) 2 SCC 788, that after engaging a lawyer, the party may remain supremely confident that the lawyer would look after his interest and the personal appearance of the party would not only be not required but would hardly be useful.

Further, he relied on the judgment of the Supreme Court in N. Balaji v. Virendra Singh & Ors., AIR 2005 SC 1638, wherein it was reiterated that laws of procedure are meant to effectively regulate, assist and aid the object of substantial and real justice and not to foreclose an adjudication on the merits of substantial rights of citizens under personal, property, and other laws.

He, again, referred to the findings in Collector, Land Acquisition, Anantnag and another v. Mst. Katiji & Ors., (1987) 2 SCC 107, where the Supreme Court observed that the power to condone delay has been conferred to do substantial justice to the parties by disposing of matters on merit and the expression 'sufficient cause' employed by the legislature was adequately elastic to enable the Courts to apply the law in a meaningful manner which sub-serves the ends of justice.

Judgment:

Having considered the above legal position, the Court held that it has to be seen whether the applicants in the miscellaneous cases before the Trial Court were able to show their bona fides and establish 'sufficient cause' by demonstrating that the mistake of their counsel, if any, should to be condoned. It rejected the arguments made on behalf of the petitioners that failure to appear on the relevant day should alone be taken into consideration and observed that the Court would be justified in examining the conduct of the party all through to ascertain whether 'the failure to appear' was a chronic phenomenon or merely a stray instance.

In the instant case, the suit which was filed as long back as in the year 2006 had remained frozen since then and the trial has never commenced. It was dismissed for non-prosecution on two occasions earlier but was restored on payment of costs. In effect, this was the third time that the suit came to be dismissed for default.

Apart from that, the Court held that there are numbers of technical lapses and defects in the miscellaneous cases that reflect poorly upon the bona fides of the applicants and their learned counsel. Therefore, having suffered the earlier mistakes of the very same counsel without protest or remedial action, it is not open to the applicants to "blithely blame" their counsel time and again and pray that they should not be penalized for his mistakes.

The Court again took note of the fact that though it was contended by the counsel for the petitioners that the restoration petition could not be filed within the period of limitation due to 'oversight, inadvertence and bona fide mistake', no details were given as to how the claimed 'oversight, inadvertence and bona fide mistake' actually occurred. Thus, no steps having been taken by the petitioners to show 'sufficient cause' for the delay, no grounds were made out for interference with the order of the Trial Court dismissing the delay condonation application.

Accordingly, the Court in the conclusion observed,

"Utter laxity on the part of the surviving plaintiffs in the suit and the widow and children of the deceased first plaintiff in pursing the litigation is therefore manifest. In such circumstances, it is not open to them to casually blame their Advocate and seek restoration of a suit of the year 2006 which has not progressed even a step further, i.e., to the stage of trial… In the interest of justice and in the interest of the defendants, who are made to put up with the vagaries of the uncaring and casual pursuit of this litigation since over a decade and a half, this Court finds no grounds whatsoever to show further indulgence to the petitioners."

Consequently, the Civil Revision Petitions were dismissed being devoid of merit.

Case Title: Longjam Bijoy Singh (Dead) by his L.R.s. v. Shri Keisham Irabot Singh & Anr. and another connected matter

Case No.: CRP (C.R.P. ART. 227) No. 40 of 2014

Date of Judgment: 4^th February 2022

Coram: Chief Justice Sanjay Kumar

Citation: 2022 LiveLaw (Man) 3