Kongkham (N) Akoijam (O) Pishaktombi Devi v. Petit

HON’BLE THE CHIEF JUSTICE MR. SANJAY KUMAR For the petitioners : Mr. H. Nabachandra, Advocate For the respondent : Ms. L. Sillori, Advocate Date of Order :

21.07.2022 CRP (CRP. Art. 227) No. 31 of 2018 Sanjay Kumar (C.J.): ORDER (ORAL) [1] This Civil Revision Petition, filed under Article 227 of the Constitution, arises out of the order dated 27.04.2018 passed by the learned Civil Judge (Junior Division), Imphal West-1, in Judl. Misc. Case No. 53 of 2017. By the said order, the Trial Court condoned the delay of 5506 days in the filing of an application to set aside the order dated 27.03.2002, dismissing Original Suit No. 14/86/13/90/21/90 for non-prosecution. Aggrieved thereby, the LRs of deceased defendant No. 1 are before this Court. [2] Heard Mr. H. Nabachandra, learned counsel for the petitioners; and Ms. L. Sillori, learned counsel representing Mr. A. Mohendro, learned counsel for the respondent. [3] [4] Parties shall hereinafter be referred to as arrayed in the suit. The original suit was filed by the plaintiff seeking eviction of the defendants from the suit land and for demolition of the house constructed thereon. The suit land is the homestead land measuring 0.11 acre under Patta No. 42/174 (old) corresponding to New Patta No. 42/320, covered by CS Dag No. 1613, situated at Keishamthong Elangbam Leikai, Imphal West District. The said suit was dismissed for non-prosecution on 27.03.2002. [5] The plaintiff then filed the subject application under Section 5 of the Limitation Act, 1963, in the year 2017, seeking condonation of the delay of 5506 days on his part in filing an application to set aside the dismissal order dated

27.03.2002. Therein, he stated that the case had been fixed by the Trial Court on

23.04.2001 but the Bench Clerk of the Trial Court informed his counsel that the CRP (CRP. Art. 227) No. 31 of 2018 case record could not be traced out and that he would be informed as and when it was found. According to him, when he went to the chamber of his counsel in July, 2001, he was told that the case record had still not been traced out. Thereafter, he went to the chamber of his former counsel several times but met with the same response. He stated that in the first week of February, 2002, he himself went to the Trial Court and enquired into the matter and the staff concerned informed him that the case record could not be traced out. He then stated that in the second week of March, 2002, he again went to the chamber of his former counsel and was told that the staff concerned would tell his counsel about the tracing out of the file. He further stated that in the second week of April, 2002, he, along with his counsel, went to the Trial Court to enquire about the file and they were told that it had not been traced out. He stated that, on that day, his counsel and the concerned staff checked the Registers maintained by the Court for ‘disposed cases’ and for ‘consignment of disposed case records’ thoroughly, but the particulars of his suit were not found entered in both the Registers. He stated that he went to the chamber of his counsel and enquired into the matter frequently, but no positive response was ever given as to the tracing out of the record. The plaintiff then stated that defendant No. 1 in the suit died on

02.01.2014 and he filed a miscellaneous application to bring her LRs on record on

29.03.2014. This miscellaneous application was registered as Judl. Misc. Case No. 55 of 2015 by the Trial Court. Order dated 02.11.2015 was passed in this miscellaneous case by the Trial Court stating that the record could not be traced out and that, most likely, the case would have been disposed of and consigned to the record room at Cheirap. CRP (CRP. Art. 227) No. 31 of 2018 According to the plaintiff, it was only on 21.04.2017 that his counsel informed him that the case record had been found and that the suit was dismissed for default on 27.03.2002. Claiming that he had no knowledge of the dismissal order dated 27.03.2002 as the case record had not been traced out all along, he filed the subject application seeking condonation of the delay of 5506 days in taking steps in relation thereto. [6] Written objections were filed by the opposite party stating that the plaintiff had not explained his lack of diligence over the years.

It was further stated that the staff of the Court could not be blamed when the delay on the part of the plaintiff was about 13 years. Dismissal of the miscellaneous case was accordingly prayed for. [7] Upon consideration of the matter, the Trial Court noted that the case was put up on 27.03.2002 and on the said day, there was no representation for both sides. Surprisingly, the Trial Court then jumped to the year 2015 when Judicial Miscellaneous Case No. 55 of 2015, filed for impleading the legal representatives of deceased defendant No. 1, was taken up and observed that the main record could not be traced out for a while. This was obviously because of the fact that the suit itself was dismissed long, long ago and the suit record would have been consigned to the Record Room, where it would not have been easily traceable. Opining that there was casualness on the part of both parties leading to dismissal of the suit on 27.03.2002, the Trial Court passed the order dated 27.04.2018, holding that condonation could be considered on payment of costs of ₹.3000/- by the plaintiff for the inconvenience caused to the defendants.

CRP (CRP. Art. 227) No. 31 of 2018 [8] Ms. L. Sillori, learned counsel, produced order dated 29.03.2019 passed by the Trial Court recording that a sum of ₹.3000/- had been paid as costs and was received by one Nazia, Advocate, on behalf of the defendants, in due compliance with the above order dated 27.04.2018. It may however be noted that when Mr. Lun Gangte, learned counsel for the respondent/plaintiff, stated before this Court that the costs of ₹.3000/- had been paid, as directed by the Trial Court, Mr. H. Nabachandra, learned counsel for the petitioners, denied the same and asserted that the signature in the endorsement shown by the other side was forged. The original suit record was called for by this Court in the context of this disputed question. It may, however, be noted that on 29.03.2019, when the Trial Court recorded the payment of costs by the plaintiff, there was no representation for the defendants. [9] This being one aspect of the matter, it may be noted that the plaintiff furnished details, at great length, as to the steps taken by him in the years 2001 and 2002, but thereafter, there is complete silence till the year 2014, when he filed a LR application after the death of defendant No.

1 in the suit. Had he been serious about prosecuting his eviction suit, it is not believable that he would have kept quiet for so many years, merely because the suit record went missing, and he would have taken steps to petition the Trial Court for reconstituting the file, so that the case could go on. Admittedly, no such steps were ever initiated. This failure on his part clearly indicates his knowledge of the dismissal of his suit long ago and his disinclination to pursue the same. It seems that he had second thoughts long thereafter and attempted to turn back the clock by claiming ignorance. However, his continued silence over the years clearly CRP (CRP. Art. 227) No. 31 of 2018 shows that he took no interest whatsoever. Even if his claim is to be accepted that he was under the impression that the suit record was untraceable, neither his conduct nor that of his counsel, as put forth by the plaintiff, is credible and convincing.

Having slept over the matter for well over a decade and some years, it is not open to the plaintiff to seek restoration of his long dead suit. The Trial Court clearly erred in showing lenience and indulgence to the plaintiff despite his manifest negligence and carelessness in pursuing the suit. [10] The order dated 27.04.2018 passed by the learned Civil Judge (Junior Division), Imphal West-I, in Judl Misc. Case No. 53 of 2017 is accordingly set aside and, in consequence, the prayer for condonation of the delay of 5506 days in filing an application to set aside the dismissal order dated 27.03.2002 passed in the suit, stands rejected. The Trial Court shall take steps accordingly in so far as the suit is concerned. [11] However, there is a dispute with regard to payment of the costs of ₹.3000/- pursuant to the order that has now been set aside. Therefore, the Trial Court shall cause an enquiry to ascertain whether or not the costs were actually paid, as claimed by the plaintiff and if so, the Trial Court shall direct refund of the same along with interest thereon @ 6% per annum. The enquiry in this regard shall be concluded within 4 weeks from the date of receipt of a copy of this order. The CRP is allowed. Suit record shall be returned to the Trial Court. In the circumstances, there shall be no order as to costs. Sandeep CHIEF JUSTICE CRP (CRP. Art. 227) No. 31 of 2018