Ahongshangbam Sanakhomba Singh and Others vs Elangopkpi Champrakhong Collective Farming Co-op. Society Ltd.

N. Surjamani Singh, J.—The order dated 31.12.96 passed by the learned District Judge, Manipur West in Misc. Civil Appeal No. 8 of 1995 is the subject matter under challenge in this Revision petition u/s 115 read with Section 151 of the Code of Civil Procedure.

The ex-parte decree on the basis of the judgment and order dated 30.7.94 in origmal suit No. 10 of 1993 was passed by the learned Subordinate Judge, Manipur West to and in favour of the Plaintiff namely, the present principal Respondent as against the present Petitioners/Defendants. Thereafter, the present Petitioners/Defendants concerned, approached the learned Subordinate Judge, Manipur West with an application under Judicial Misc. Case No. 204 of 1994 for setting aside the said ex-parte decree dated 30.7.1994 passed in original suit No. 10 of 1993. Upon hearing the parties, the learned trial court held that the said application for setting aside the ex-parte decree was made after the prescribed period of limitation and, accordingly, the application was dismissed with cost of Rs. 200/-vide order dated 5.1.1995 passed injudicial Misc. Case No. 204 of 1994.

It is also an admitted position, that the learned Trial Court also dismissed the application filed by the present Petitioners/Defendants concerned, for condonation of delay of 30 days in making the said application dated 28.9.1994 for setting aside the said ex-parte decree of 30.7.1994 by an order dated 13.12.1994 passed in Judicial Misc. Case No. 205 of 1994. The present Petitioners did not challenge the validity of the earlier order of 13-12-94 passed by the learned Trial Court in Judicial Misc. Case No. 205 of 1994, but, they challenged the validity of the order dated 5.1.1995 passed in Judicial Misc. Case No. 204 of 1994 in the Court of the learned District Judge, Manipur West under Misc. Civil Appeal No. 8 of 1995, the learned first Appellate Court, after hearing the parties held, that the first Appellate Court cannot go into the merit of the case unless the delay is condoned first and the present Petitioners had been directed to approach the competent Court to condone the delay first so that the final Appellate Court may consider the case on its merit under the impugned order of 31.12.1996 passed in Misc. Civil Appeal No. 8 of 1995. Being aggrieved by the impugned order of 31.13.1996, passed by the learned First Appellate Court, the present Petitioners filed this Revision petition.

Mr. N. Kerani Singh, the learned senior Counsel for the Petitioners submitted, that no separate petition or appeal either for revision or appeal from the previous order of 13.12.1994 is called for as the said order of 13.12.94 passed injudicial Misc. Case No. 205/1994 has been merged with the order of 5.1.1995 passed in Judicial Misc. Case No. 204/1995 and this aspect of law has not been examined and considered by the learned first Appellate Court while passing the impugned order. According to Mr. Kerani, the learned first Appellant Court has failed to consider and note that the appeal was filed within time and, as such, no separate application for condonation of delay is required to be filed alongwith the memo of appeal as this aspect of law is well settled under Order 41 Rule 3A CPC and this provision of law is applicable in the instant appeal before the first Appellate Court. It is also argued by the learned senior Counsel, that it is for the first Appellate Court to decide the appeal on merits as the grounds of appeal disclosed the merits of the case and the learned first Appellate Court cannot direct the present Petitioners to go to another Court to seek for condonation of delay.

In my considered view, the submissions of Mr. N. Kerani Singh, the learned senior Counsel for the present Petitioners, holds a little water for the following reasons:

An application was filed by the present Petitioners before the Trial Court for condonation of 30 days delay in making an application dated 28.9.1994 for setting aside the ex-parte decree dated 30.7.1994. The application for condonation of delay was rejected. If the Petitioners are really aggrieved by the order of 13.12.1994 passed in Judicial Misc. Case No. 205 of 1994, they ought to have filed a Revision petition u/s 115 CPC as the rejection of application u/s 5 of the limitation Act isrevisable u/s 115 CPC if the Trial Court had failed to exercise the jurisdiction vested or bad acted in the exercise of its jurisdictional illegally or with material irregularity while passing the related order, but, it was not done so. Apart from it, the determination of sufficiency of cause u/s 5 of the Limitation Act is a matter which rests in the domain of the learned Trial Court and a finding recorded about such sufficient of insufficiency does not raise any question of jurisdiction and the power to condone delay rests with the Courts concerned in which application was filed beyond the period of limitation.

The learned first Appellate Court also opined, that no fresh application for condonation of delay was also filed before it and the delay in filing the said application for setting aside the said ex-parte decree still remained uncondoned.

It is well settled, that the High Court should not interfere even if the order of the lower Appellate Court is right or wrong or in accordance with law or not, unless it exercised its jurisdiction illegally or with material irregularity. This principle of law finds its place in a case between The Managing Director (MIG) Hindustan Aeronautics Ltd. and Another, Balanagar Vs. Ajit Prasad Tarway, In another case between D.L.F., Housing and Construction Company (P.) Ltd., New Delhi Vs. Sarup Singh and Others, the Apex Court held thus:

While exercising the jurisdiction u/s 115, it is not competent to the High Court to correct errors of facts however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. The words "illegally" and "with material irregularity" as used in Cl(C) do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with.

So far the allegations of the present Petitioners to the effect that the advocates of the present Petitioners failed to appear before the Court to conduct the case on 28.6.1994 and as a result of which, the suit was proceeded ex-parte against them and also about the disengagement of their previous lawyers in this revision petition, does not help the case of the Petitioners as there is no material on record for believing such statements of the Petitioners and, there is no such absolute rule that a party can disown its advocate at any time and seek relief. At this stage, a reference can be made to a decision of the Apex Court rendered in Salil Dutta Vs. T.M. and M.C. Private Ltd.,

Mr. A. Nilamani Singh, the learned senior Counsel for the Respondents argued that there is no irregularity or infitmify in the impugned order of 31.12.1996.

Upon hearing the learned Counsel on both sides and also, on perusal of the available materials on record, I am of the view that there is no irregularity or illegality or impropriety in the unpugned order of 31.12.1996 passed by the learned first Appellate Court in Misc. Civil Appeal No. 8 of 1995.

For the reasons, observations and discussions made above, the Petitioners had failed to make out a case to justify the interference of the impugned order of 31.12.1996.

In the result, this revision petition is dismissed, thus affirming the impugned order of 31.12.1996 passed by the learned first Appellate Court. No cost.