Gauhati High Court
Laishram Indrakrishna Singh vs Dr. Thongam Nabakumar And Ors. on 10 April, 2002
Equivalent citations: (2003)1GLR259
Author: S.K. Kar
Bench: S.K. Kar
JUDGMENT S.K. Kar, J.
1. Petitioner/Plaintiff, Shri Laishram Indrakrishna Singh, being dissatisfied with the order dated 26.2.2002 passed in Judl. Misc. 111 of 2001 (arising out of O.S. No. 33 of 2000) filed this Revision petition along with a prayer for maintaining status quo with respect to the land described in the schedule to the plaint concerned (hereinafter called the suit land). The suit land was described as follows:
"Schedule of the suit land Out of the land under old patta No. 421 corresponding to new patta No. 729-844 of village No. 87 (A) Khwal Bazar covered by C.S. Dag No. XV1II/226 of 226/326, situated at Paona Bazar, Imphal, the land forming 'L' shape, measuring an area of 10' from South to North and 35' from West to East and extending towards north on the eastern side upto 30' from the southern boundary line and 15' in width measuring from east to west which lies on the south western side of the patta land and bounded on the :
North :- Land of Th. Surchand Singh ;
South :- Land of Md. Abdul Haque ;
East:- Remaining land of patta ; and West :- Paona Road than remaining land of the patta on the northern portion."
2. This Revision petition is being disposed of without calling for the L.C.R., i.e., Lower courts' records, as there is no pressure from either side for the same. In the revision-petition the contents of the plaint has not been reproduced, but it was briefly stated that the plaintiff/ petitioner is the owner on the strength of purchase of the suit land and is in possession. But formal deed of transfer was not executed in his favour for which the suit was presented for declaration of his interest and for maintaining his possession by way of injunction etc. and for the execution of formal deed of transfer.
3. In this context the petitioner/plaintiff filed petition for injunction against the respondents 1 and 3 which was registered as Judl. Misc. Case No. 119 of 2000 and order of maintaining status quo was passed ex-parte on 14.8.2000, but finally by order dated 13.12.2000 the aforesaid order of status quo was vacated by the court of Civil Judge, Junior Division after considering the counter-affidavit filed by the respondents No. 1. Against the order of the trial court vacating the injunction, he preferred an appeal before the District Judge, Manipur East and the same was registered as Civil Misc. First Appeal No. 2 of 2001. On registration of the miscellaneous appeal, the learned District Judge passed the following order :-
"1.2.2002 - Appellant counsel present. Heard the motion. Register it as MCA Case and issue notice to the caveator party appellant is to take step.
Hence a case is on 16.2.2002 for step.
Sd/-
(M. Binoykumar Singh) District Judge, Manipur East."
In the meantime the petitioner/plaintiff filed petitions for further and better particular with respect to the written statement filed by the respondents before learned trial court and said petitions have been registered as Judl. Misc. Case No. 1 of 2001 and 2 of 2001 respectively. Simultaneously, consequent to the registration of those two misc. cases an order was passed in the Original suit No. 33 of 2000 by the learned trial court on 2/1.2001 keeping the main suit in abeyance till disposal of the said two Judicial Misc. cases (copy of which has been filed as Annexure-A/3) and it goes as follows :
"ANNEXURE-A/3 IN THE COURT OF THE CIVIL JUDGE, JR. DIVISION IMPHAL.Original Suit No. 33 of 2000
Shri Laishram Indrakrishna Singh - Plaintiff Versus Shri Dr. Thongam Nabakumar Singh and 2 ors. - Defendants.
Order dated 2.1.2001.
Both parties present by counsel. The main suit is kept in abeyance till the disposal of the Judl. Misc. Case Nos. 1 and 2 of 2001.
Sd/-
Civil Judge (Jr. Divn), Imphal."
4. It is also contended in the revision-petition by the petitioner that as the Civil Misc. First Appeal No. 2 of 2001 was pending before the learned District Judge, Manipur East, he filed a petition on 2.2.2001 being petition No. CJ (Jr.) Imphal/2001/265 dated 2.2.2001, for the purpose of sending the case records to the court of District Judge. According to him the said petition was neither acted upon nor mentioned in the relevant order dated 2.2.2001 passed by the trial court. (This contention was vehemently objected by the opponents).
5. That, since the misc. appeal was pending before the court of District Judge, Manipur East, there was consecutive adjournments of the two Judl. Misc. cases registered before the trial court and the petitioner/plaintiff was under the impression that the connected case records before the trial court will be forwarded to the court of District Judge and accordingly he ceased to appear before the trial court since thereafter. That on 23.5.2001 the aforesaid Judl. Misc.
Case Nos. 1 of 2001 and 2 of 2001 were dismissed for default (for non-appearance) of the petitioner/plaintiff. After dismissal of the two Judl. Misc. cases, the learned District Judge also took up the main suit and same was also dismissed for default by another order dated 23.5.2001 mentioning thereupon that the petitioner absented himself when the suit was called on for issue hearing. The relevant order of dismissal has been annexed as Annexure-A-9 and it goes as follows :
"ANNEXURE-A/9 IN THE COURT OF THE CIVIL JUDGE, JR. DIVISION IMPHAL.Original Suit No. 33 of 2000
Shri Laishram Indrakrishna Singh - Plaintiff Versus Shri Dr. Thongam Nabakumar Singh and 2 ors. - Defendants.
Order dated 23.5.2001.
Case record is put up to day after disposal of the Judl. Misc. Cases No. 1 & 2 of 2001. The plaintiff is absent, Cause is not shown. The defendants are present by their respective counsel. The case is called in for issue hearing. Still the plaintiif is absent. Cause is also not shown.
Hence, the suit is dismissed for default.
Sd/-
Civil Judgef (Jr. Division) Imphal."
6. It was stated by the petitioner/plaintiff that he was ignorant of the proceedings and the existence of the impugned order till 18.8.2001, it came to his knowledge only when respondent No. 1 filed a misc. case before the District Judge, Manipur East, intending for an order to dismiss the appeal pending before him. That, thus coming to know about the dismissal of the main suit the counsel of the petitioner presented a petition for setting aside the dismissal order dated 23.5.2001 and the same was registered as Judl. Misc. Case No. 111 of 2001. The petition for restoration of the suit was accompanied by another petition Under Section of Limitation Act, 1983 for condonation of delay. The petition for restoration of the suit and the application for condonation of delay were duly contested by the respondents by filing written objections, denying all the allegations made by the petitioner and praying for rejection of the application with costs etc. Learned Civil Judge (Jr. Division) heard both sides on this matter and thereafter passed order dated 26.2.2002, i.e., the impugned order, refusing to condone delay and dismissing the application for restoration of the suit holding, inter alia, that there is no sufficient cause shown for condoning the delay. Hence, this revision-petition on the grounds, amongs other, that (1 quote from petition) :-
"(1) there was bona fide mistake on the part of the petitioner plaintiff for which he did not appear before the trial court;
(ii) that, the learned trial court misconceived and failed to understand the implication of order 9 rule 9 and Section 5 of the Limitation Act, 1963 ;
(iii) that, in view of the pendency of miscellaneous appeal, the trial court was not justified in dismissing the suit;
(iv) that, the learned trial court failed to consider the fact that dismissal of the suit will cause grave injustice to the plaintiff petitioner and his counsel was to loose nothing ;
(v) that, it is the settled law that parties should not suffer for the inaction, deliberate omission or misdemeanour of their counsel;
(vi) that, there was neither negligence or wants of deligency on the petitioner and accordingly the impugned order dismissing the suit was ab initio void and is liable to be set aside."
7. Although there was a prayer for interim relief, this court did not pass any order to that effect at the time of admission of the petition. The petition was confronted by a caveat. In response to the notice to the caveator, counter-affidavit was presented by the respondent No. 1 with copy to the Advocate for the petitioner. Respondents 2 and 3, however, did not contest this revision-petition.
8. The contention of the respondent No. 1, Dr. Thongam Nabakumar Singh, is that the Civil Revision-petition is not maintainable as it is presented with incorrect and twisted facts. It was contended for and on behalf of this respondent No. 1 that he took over actual possession of the suit land and building thereon on and from 1.8.2000 as per the agreement entered into and made on 1.5.2000 between the petitioner and the respondent No. 1. Thereafter, the respondent No. 1 has been in actual possession and control of the suit land and the building/structure thereon, by way of resuming his possession thereon on the strength of a registered sale-deed dated 3.12.1999 from the former admitted owner Shri Haobam Mahabir Singh.
Accordingly, he submitted that petition is mala fide, illconceived and is an abuse of the process of court. He prayed for dismissal of the same with exemplary costs.
9. In the background of these submissions made by the parties, I have heard the learned lawyers on both sides, considered the several annexures attached to the petition and also the affidavit-in-opposition, which were produced before this court for consideration.
10. Hence, in this case, before we enter into the debate on the merit of this revision-petition, it is to be observed that an initial challenge has been made to the maintainability of this petition by the learned Lawyer appearing for the respondents No. 1 although such challenge is not traceable in the counter-affidavit that was filed by this respondent. Learned Lawyer for the respondent also tried to impress upon the court that the suit itself is wanting in cause of action, vexatious in nature on which ground also the petitioner is not entitled to any relief. This objection also is not available in the counter -affidavit. Moreover, counter-affidavit specifically mentions that respondent No, 1 actually took over physical possession of the land and building, i.e., suit land. So, question of suit being entirely vexatious or wanting in cause of action does arise. Admittedly, there is a cause to enter into trial.
11. It will be observed on a bare perusal of petition for restoration (Anriexure-A/10) that in fact with two distinct objections, only one petition was filed by petitioner/plaintiff and entertained by the court below without objection. Judl. Misc. case No. 111 of 2001 arose out of an application under order 9, rule 9 read with Section 151 CPC together with a prayer for condonation of delay of 82 days under Section 5 of Limitation Act, 1963. In the connected written objections dated 20.2.2002 of the defendant/O.P. No. 1 as well as defendant/ DP Nos. 2/3 (Vide Annexures-A/11 and A/12) the allegations in the petition were duly counter acted by the defendants/Opp. Parties and same has been reflected in the impugned order. So, we cannot say that there was no cause to go into trail. The connected order of injunction passed by the trial court reflects that court found prima facie cause of action in favour of the petitioner/plaintiff, but the other two cardinal principles of balance of convenience and irreparable loss were decided against the petitioner for which the interim injunction passed earlier was vacated.
12. Now, let us discuss whether, under the particular facts and circumstances as narrated before-hand, whether a revision lies or not. The contentions of the respondent No. 1, by referring to (1) AIR 1975 MP 136 (FB), para 7 (ii), 13-18, 26 (2) AIR 1970 MP 199 (DB) para 10/14, (3) AIR 1988 NOG 77 (Ker), (4) AIR 1954 Assam 1 (FB) paras 29, 30, 41, 51 and (5) AIR 1959 Patna 12 (FB) paras 4, 5, 8, 9, 12 are that order of dismissal of application under Order 9 Rules 9 CPC is appellable one as per provisions under Order 43 Rule 1(c), CPC. That it is immaterial whether such petition is dismissed on merit, or for non-prosecution or for other reasons and only appeal will lie but not revision. An analogy was drawn in support of the contentions aforesaid by referring to (1993) 1 SCC 557 (para 2) where it was stated that ex-parte decree under order 9 rule 13 CPC was having a similar status as that of an application under order 9 rule 9 and High Court would not be justified in interfering with the order passed by the Court below in exercise of its (High Court's) revisional jurisdiction Under Section 115 CPC. It was also contended by referring to AIR 1970 SC 997 that where alternate remedy is available court cannot also exercise inherent power to grant relief.
13. On the other hand, it was contended on behalf of the revision-petitioner, by referring to the case-laws reported in (1) 1981 (2) SCC 788, (2) AIR 1985 Gauhati 3, (3) AIR 1984 Orissa 230 (para 31), (4) AIR 1986 P&H 3 and (5) 1987 (2) GLR 34, that the order rejection an application for restoration of suit etc. following rejection of application for condonation of delay is not a decree within the definition of Section 2(2) of CPC and such order is not appellable but revisable.
14. It was conceded fairly at the bar that the facts of each case are different from those of any other case and we try to draw an analogy or accept a reference only when facts are almost similar or at least tent to be similar in order to apply the ratio.
15. Here, before coming to a clear finding on the questions of law, we are required to consider the factual proposition of contentions raised. The proceedings before the learned trial court became callous and inappropriate due to the fact that no separate petitions under Section 5 of Limitation Act seeking leave of the Court for condonation of delay and for setting aside order of dismissal under provision of Order 9 Rule 9 were filed. It was a composite petition entertaining both the prayers which created the confusion and trouble. In the written objection filed by defendants 2 & 3 (Annexure-A/11 & A/12) to the application, it was clearly stated by defendants that two separate petitions should have been presented. So, respondent No. 1 conceded to this position of facts much earlier and not he cannot retract. Relevant portion of there written objection is reproduced as below :
"(ii) The application under objection bears two prayers of distinct subject-matter, such as one for condoning the delay if any, and Anr. for restoring the above referred suit to its file by setting aside the order dated 23.5.2001. Under Rule 20 of the High Court Civil Rule and Orders, separate application for distinct subject-matter have to be filed and a petition should not contain more than one prayer or one series of alternative prayer of same kind. In view of the above, the application under objection is not maintainable."
16. Thus, it was also the contention of the respondent earlier that filing of a composite petition and passing of composite order was not proper course of action taken by the learned Court.
17. Now, the provision for revision as contained in Section 1156 CPC may be quoted for convenience of discussion and it goes as follows:
"115.(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 exercise a jurisdiction 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 an suit or other proceeding, except where -
(a) the order, if it had been made in favour or the party applying for revision, would have finally disposed of the suit or other proceeding, or
(b) the order, if allowed to stand, would occasion a failure or justice or cause irreparable injury to the party against whom it was made.) (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."
18. Bearing in mind the section of law aforesaid, if we come to analyse the facts of this present case before us, we will find that the learned Trial Court on 23.5.2001 initially passed two similar orders while dealing with Judl. Misc. Case Nos. 1 and 2 of 2001 at 1.40 P.M. Presence of the counsel of the defendant/opposite party and in the admitted absence of Plaintiff/Petitioner. Once of these orders goes as follows:
'The Plaintiff/Petitioner is absent. Case also not shown. The defendant/Opp. Parties present by the counsel. The case is called on for Written Objections and hearing for several times. It is 1.40 P.M. Still, none appears for the Petitioner/Plaintiff cause is also not shown. Hence, the case is dismissed on default."
Announced in the open Court.
Sd/-
Civil Judge (Jr. Divn.) Imphal."
If we carefully juxtapose the order to that passed in the Suit (Annexure-A/9) and make a comparative study, it will clearly reveal that the learned Trial Court without the knowledge of the plaintiff, i.e., the Petitioner, took up the main suit after disposal of Judl. Misc. Case No. 1 of 2001 and 2 of 2001, at about 1.40 P.M. and passed the order of dismissal. It was also commented 'the case is called in for issue hearing' and that the plaintiff was absent without showing any cause. But order dated 2.1.2001 passed by the same Court earlier in the Original Suit stated. The main suit kept in abeyance till the disposal of the Judl. Misc. case Nos. 1 and 2 of 2001'. Therefore, it would have been quite logical, reasonable and proper after the disposal of the two Misc. cases to issue notice to the Plaintiff before he being abruptly non-suited, to take steps in the Original Suit which was kept in abeyance. I give emphasis in the wordings, "kept in abeyance". There is nothing, either in the case record or from the submissions made by the respondent in order to impute knowledge to the Plaintiff that main suit was going to be taken up for disposal on 23.5.2001 itself along with the two Misc. cases. This is a clear case or material irregularity if not illegality as conceived by the language of Section 115(1)(c) of CPC. Thus, for no fault of his the Plaintiffs suit was thrown out improperly by the Trial Court although initially while dealing with the injunction matter learned Trial Court was of the opinion that there is cause of action to go into trial. This would definitely 'occasion a failure of justice and would cause an irreparable injuries' to the Petitioner/Plaintiff who sought relief in the Court of law. Any Court on the Principle of Ex debito justitiae exists in order to administer justice. It will be pertinent to mention here that contention of the Revisionist is that he could not appear before the Trial Court due to a mistake, may be due to misrepresentation or misunderstanding of facts believing that the Suit will not be disposed of unless the Appeal pending before the High Court comes to an end. This is also a fact on record that at the time of passing the order dismissing the suit for default the connected. Civil Misc. Appeal No. 2/2001 was pending before the District Judge.
19. It will be incidentally convenient here to examine the letters and spirit of law given by Order 9 Rule 8. I quote :
"8. Where the defendant appears and the Plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and where part only of the claim has been admitted, shall dismiss the suit so far as it relates tq the remainder."
A plain reading of section of law given by Order 9 Rule 8 will thus show that dismissal of a suit is possible only under the definite exigency, viz., when the suit is called on for hearing. It is also there in the rule in the form of a caution that suit should not be so dismissed if the defendant admits the claim or part thereof etc. So, it is not expected that the Court will make a mechanical order of dismissal under Order 9 Rule 8. The most important question is that suit must be called on for hearing before any order of dismissal can be passed, or on other hand, it may be stated that the suit should be decided within the knowledge of the plaintiff about the date of hearing. Thus, we find that very order of dismissal of the Suit by order dated 23.5.2001 was itself without jurisdiction ab initio.
20. Be that as it may, we are concerned only in this Revision Petition with the impugned order dated 26.2.2002 and not that which was passed on 23.5.2001. There is no dispute that any order passed under Order 9 Rule 9 is appealable; but then, this is not the position with respect to an order refusing to excuse delay on an application Under Section 5 of the Limitation Act, 1963. In case of such refusal only revision is maintainable - 1980 All WC 547. From the annotations and discussion of law to that affect we will find from the relevant space in the concerned AIR Manual, 5th Edition, 1989 as follows :
"The Revisional Court can in appropriate cases interfere with the discretion exercised by the authority refusing to condone the delay as the matter relating to condonation of delay is one which touches upon the jurisdiction of authority to proceed with the case or to entertain an applicable or a proceeding."
(1983) 1 All Rent Case 40/43.
In 1986 Kash LJ 1 (5) ; (1990) 2 Civ. LJ 51 (52) MP, it was held as follows - Whether or not there is sufficient cause for condonation of delay is a question of facts dependant upon the facts and circumstances of a particular case. So, no hard and fast rule can be laid down about the maintainability or revision petition.
21. The term 'sufficient cause' has not been defined anywhere. It is a question of fact depending upon the circumstances of each case : AIR 1970 Orissa 149 (154) ; AIR 1952 Assam 190 (191). A bona fide mistake which is not unreasonable or for which party is not responsible was treated as a 'sufficient cause' in AIR 1933 All 276 (276) Here in the instant case the petitioner pleaded such a case which was not adequately discussed by the Trial Court. The Trial Court unwisely found fault with the petitioner/plaintiff that he falsely stated to have filed a petition asking to send the case record to Court of District Judge. It was held in another case as follows : -
"Where suit was dismissed on a date not fixed for hearing, it was treated as sufficient cause" - (AIR 1930 Cal. 251 (DB).
22. It will be quite pertinent to note here that if a suit is dismissed under Rule 8 of Order 9, the Plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. The only remedy for him is to apply for an order to set dismissal aside. The only thing required for him is to show, 'sufficient cause' in order to satisfy court for his non-appearance when the suit was called on for hearing. In the instant case, under the facts and circumstances as discussed hereinbefore, there are "sufficient causes' shown by the plaintiff by way of admitted fact that the suit was dismissed on a date on which it was not fixed for hearing. Over and above there was misc. appeal pending in connection with interlocutory order arising out of the same suit. It will be quite significant to observe that the two Judl. Misc. cases were also dismissed for default for non-appearance of the plaintiff/petitioner on the same date, i.e., 23.5.2001. Earlier order dated 8.5.2001 (Annexure-A/6) shows that misc. case Nos. 1 and 2 of 2001 were posted for written objection (w/p) and hearing on 23.5.2001. By no stretch of imagination it can be said that the original suit No. 33 of 2001 was also posted for hearing on 23.5.2001 by the said order dated 8.5.2001.
23. The case law given by (1986) 2 GLR 34 also relates to the question of law whether appeal or revision lies when the petition Under Section 5 of Limitation Act is disposed of by the lower court. It was held that revision will lie and not appeal. Therefore, there is sufficient authority in favour of the petitioner/plaintiff to uphold the contention that there is material for revision. This, insofar the first part of the impugned order refusing to condonation of delay is concerned a revision will lie and the same is entertained. It is entirely a different question of law that appeal will only lie against an order under Order 9 Rule 9 dismissing a suit/application read with Section 141 of CPC or 151 CPC, as the case may be.
24. Now, let us proceed to examine merit of the impugned order. It will be seen from a reading of the impugned order dated 26.2.2002 that after narration of the rival contentions of the parties learned trial court abruptly summarised the argument and concluded as follows:
"Head the parties at length and perused the applications filed by both the parties along with enclosed photostat copies.
I have also carefully perused the order dated 23.5.2001 passed in the original suit and the orders dated 2.2.2001 passed in the Juld. Misc. case Nos. 1 and 2 of 2001.
The ground for the condonation of 82 days as prayed by the petitioner is based purely on the alleged application being CJ (Jr.) Imphal/265, dated the 2.2.2001. The petitioner presumed that since the parties have acknowledged the mater the court would not proceed with the case and records would be sent to the Appellate Court.
In this regard great pain has been taken by the Court in order to find the truth. The relevant orders present in the case records is perused carefully. But I cannot find and trace the application as alleged in this case. Neither the application for the order was recorded and mentioned in the order passed by the Court.
I have carefully examined the original suit and its connected Judl. Misc. cases available in the case record. I find that both the parties were present on the 2.2.2001 as reflected in the case record. However, no orders were regarding the filing of the alleged application as submitted by the petitioner.
The order dated 23.5.2001 passed in the original suit as well as the Judl. Misc. cases were also carefully seen. It revealed that the Court was constrained to dismiss the case at 1.40 P.M. on the default of the petitioner.
I am of the opinion that in the above fact and circumstances of the case the petitioner's negligence had caused the dismissal of the suit.
At this juncture of the finding of the court, the petitioner has failed to show sufficient cause for the condonation of delay as provided under the provision of Section 5 of the Limitation Act.
I find this application has not merit for the condonation.
Hence, I am satisfied and justified to dismiss the application under Order 9, Rule 9 CPC as barred by time."
I find from above extract of the impugned order that there was no logical discussion on the question of 'sufficient cause'. Rather there were conflicting views of plaintiff giving a false story and then accused him of negligence etc. The main contention of petitioner/plaintiff was that he accidentally came to know of dismissal on 18.8.2001 when defend ant/Opp. No. 1 made an application to District Judge stating that suit has been dismissed on 23.5.2001. The impugned order made no discussion on this fact at all. It was held in (1986) 2 Com LJ 41 (48) that absence of knowledge of dismissal of the suit for default can be 'sufficient cause' to excuse delay in filing an application for restoration. It was for quite a long time the consistent and conscientious view of the courts that restoration of a suit dismissed for default should not be denied simply because the plaintiff fails to prove strictly sufficient cause for his non-appearance. Ordinarily if the application made within limitation, the suit ought to be restored and for the negligence on the part of the party, the other party may be compensated with costs. 1979 Pun. LJ 259 (259); AIR 1986 Cal. 637.
25. Therefore, I find here is a case where the impugned order was made without jurisdiction as well as with material irregularity in the exercise of jurisdiction and hence there is merit in the revision petition.
26. In the result, the revision petition is allowed. Impugned order dated 26.2.2002 is set aside. Learned court is directed to proceed with the original suit as per law as if the impugned order never existed giving reasonable opportunities to the rival parties.
27. Parties are directed to appear before the lower court within 30 (thirty) days from today to receive further orders from the trial court.