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

The Manipur High Court has held that Courts should examine conducts of parties "all through" to ascertain whether their non-appearance was a singular stray instance or a chronic phenomenon. 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. ...

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

Jyoti Prakash Dutta

Courts must ascertain if 'failure to appear’ was a chronic phenomenon or a stray instance.

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