Bumrenglien v. Khuplinthang alias Athang Kom

B E F O R E HON’BLE THE CHIEF JUSTICE MR. SANJAY KUMAR For the Applicant : Mr. K. Modhusudon, Advocate For the Opposite Party : Mr. Sushilkumar, Advocate Date of order : 06-07-2022 O R D E R [1] CRP No. 16 of 2016 was filed by Bumrenglien, the defendant in Original Suit No. 4 of 2014 on the file of the learned Civil Judge (Senior MC(CRP) Nos. 1 & 2 of 2021 Division), Bishnupur, aggrieved by the dismissal of his application in Judl. Misc. Case No. 249 of 2016 filed therein, seeking leave to file his written statement with delay. [2] However, the CRP came to be dismissed for non-prosecution on 17-11-2018. [3] MC(CRP) No. 6 of 2018 was thereupon filed by applicant-defendant for restoration of the CRP to the file. This miscellaneous case also came to be dismissed for non-prosecution on 22-10-2019. [4] MC(CRP) No. 2 of 2021 was then filed by the applicant-defendant seeking restoration of MC(CRP) No. 6 of 2018. As there was delay on his part in seeking this relief, he filed MC(CRP) No. 1 of 2021 to condone the delay of 115 days in the filing of the restoration petition. These two miscellaneous cases are now coming up for consideration. [5] Heard Mr. K. Modhusudon, learned counsel, appearing for the applicant-defendant and Mr. Sushilkumar, learned counsel respondent-plaintiff. [6] Perusal of the initial dismissal order dated 17-11-2018 reflects that the applicant-defendant, being the petitioner the CRP, sought adjournments on the previous four occasions and failed to appear before the Court on 17-11-2018. It was on this ground that the CRP came to be dismissed for non-prosecution. MC(CRP) No. 6 of 2018 was filed by him for restoration of the CRP on 10-12-2018 and came up for hearing on 11-12-2018. This Court ordered notice to the respondent-plaintiff and directed the matter to be listed after service of notice was complete. When the miscellaneous case was listed for hearing on 27-08-2019, the Registry MC(CRP) Nos. 1 & 2 of 2021 was directed to verify whether any vakalatnama was filed on behalf of the respondent-plaintiff. The matter was adjourned to 24-09-2019. On that day, Mr. K. Modhusodon, learned counsel, appeared for the applicant-defendant and this Court again directed notice to the respondent-plaintiff and posted the matter on 22-10-2019. The order passed on 22-10-2019 reflects that though notice was ordered on 11-12-2018, the Registry Note dated 24-08-2019 disclosed that the details of the consignment number were not found online for tracking and that was the reason why the applicant- defendant was directed to take steps afresh to effect service of notice. The Court however found that no steps had been taken in that regard and to compound matters, there was no appearance on his behalf. It was due to these factors that the miscellaneous case was also dismissed. [7] Admittedly, there is delay on the part of the applicant-defendant in seeking restoration of the restoration petition and that is why he filed MC(CRP) No. 1 of 2021 to condone the same. The condone delay petition states to the effect that MC(CRP) No. 6 of 2018 was listed on 22-10-2019 but the arguing counsel was out of station on that day and his junior was late in coming to Court, owing to some sickness. According to the petition averments, the junior counsel reached the Court at 11.15 a.m. and by that time, the miscellaneous case was already dismissed for default. It was further stated that due to his sickness, the junior counsel could not inform his senior in time and thereafter, due to the COVID-19 pandemic, steps were not taken. As per the petition averments, the learned counsel came to know that the miscellaneous case was dismissed for default only on 28-09-2021. This was the explanation offered for the delay. MC(CRP) Nos. 1 & 2 of 2021 [8] It may be noted that the delay from 22-10-2019 till the filing of the present miscellaneous case on 03-10-2021 is actually 722 days but the applicant-defendant claimed protection under the orders of the Supreme Court in relation to the COVID-19 pandemic, whereby the period from 15-03-2020 till 02-10-2021 was excluded and the delay was quantified as 115 days only. [9] Mr. Sushilkumar, learned counsel for the respondent-plaintiff, would point out that no document has been placed on record in proof of the junior counsel suffering from any sickness, whereby he was prevented from attending to the case on 22-10-2019. Learned counsel would assert that the lack of knowledge claimed by the applicant-defendant and his counsel till 28-09-2021 is not believable as it does not stand to reason that the junior counsel would have failed to inform his senior of the dismissal of the miscellaneous case, despite being well aware of the same. [10] This Court finds merit the submissions made by Mr. Sushilkumar, learned counsel. Being fully aware of the dismissal of the miscellaneous case on 22-10-2019 itself, it is not believable that the junior counsel would have kept mum and failed to inform either his senior or the party about the same. It is also not believable that the senior would not have enquired about the fate of the case till September, 2021, despite his awareness of its listing in October, 2019. [11] No doubt, failure of the counsel in taking steps would ordinarily be condoned if injustice is caused thereby to a party who is otherwise diligent. However, in the case on hand, negligence is clearly attributable not only to the counsel for the applicant-defendant but also to the applicant-defendant MC(CRP) Nos. 1 & 2 of 2021 himself. A party who does not bother to keep track of his case for nearly two years cannot blithely blame his counsel and seek to turn back the clock. Long delay in taking appropriate steps would vest the other side with certain indefeasible rights which cannot be ignored by the Court at a later point of time, when the defaulting party chooses to wake up and appeals to the Court for leniency. This is the situation in the case on hand. Having suffered dismissal of the main case in November, 2018, the applicant-defendant and his counsel showed the same disregard and carelessness in following up on the restoration petition and it came to be dismissed in October, 2019. Despite knowledge of the same, they failed to take appropriate steps for a long time thereafter. This Court therefore finds no grounds to show any indulgence to the applicant-defendant at this late stage. MC(CRP) No. 1 of 2021 is accordingly dismissed. In consequence, MC(CRP) No. 2 of 2021 is also dismissed. CHIEF JUSTICE Victoria NINGOM BAM VICTORIA VICTORIA 15:50:03 +05'30' MC(CRP) Nos. 1 & 2 of 2021