AI Structured Summary
Not yet generated for this judgment
Judgment
[1] Heard Mr. D. C. Saha, learned counsel appearing for the petitioners as well as Mr. S. Pal, learned counsel appearing for the respondent No.1 and Mr. R. G. Chakraborty, learned counsel appearing for the respondent No.2.
[2] By means of this petition filed under Article 227 of the Constitution of India, the order dated 02.01.2019 delivered in M.S. (CC) 01 of 2017 connected with Money Suit No.40 of 2016 by the Civil Judge (Sr. Divn.), Court No.2, West Tripura, Agartala and the orders dated 24.06.2019 delivered in Civil Misc (Condonation) of 2019 and in Civil Misc. (Restoration) 08 of 2019 in reference to M.S. (CC) 01 of 2017 [connected to Money Suit No.40 of 2016] have been challenged.
[3] Mr. D. C. Saha, learned counsel as at the outset submitted that the suit was instituted by the respondent No.1 being Money Suit 40 of 2016 for realization of the amount. Having received the summon in the suit, the petitioner filed the counter claim under Order VIII Rule 1 of the CPC which has been registered as M.S. (CC) 01 of 2017 both the suit and the counter claim were running simultaneously in the said court.
[4] In the counter claim, however, summons was issued. From the order dated 21.07.2018 passed in M.S. (CC) 01 of 2017, it appears that the summon was returned by the postal department unserved. But, in the order dated 31.08.2018, the Civil Judge (Sr. Div.), Court No.2, West Tripura, Agartala has recorded that "from the record it appears that service of summon upon counter-respondent has not yet been returned". But without making any change in the order dated 21.07.2018, but the counter claimants, the petitioners herein, were directed to file postal tracking report by the next date which was fixed on 06.10.2018.
[5] On 06.10.2018, no such postal tracking report was filed by the counter claimants, the petitioners herein. Again on 01.12.2018, the counter claim was posted, but the counter-claimants did not file the postal tracking report in the said court and consequent thereupon, the counter claimants were again directed to file the postal tracking report by the next date which was posted on 02.01.2019. On 02.01.2019, the counter claim was dismissed for under Order IX Rule 8 of the CPC.
[6] Mr. D. C. Saha, learned counsel has drawn attention of this court to a certified copy of the Firisti (the list of document) Annexure-E2 to the present petition, wherefrom he has shown that the original postal receipt vide No.EE48570492219 dated 13.06.2018 was placed before the court. Mr. Saha, learned counsel has contended that amounts to sufficient compliance. This court is constrained to observe that, the postal receipt is not the tracking report which the court had directed to be submitted before it.
[7] Be that as it may, the summons were sent to the defendant in the counter claim by registered post and those were sent by the sheristadar of the court of the Civil Judge (Sr. Div.), Court No.2, West Tripura, Agartala. As such, it was the duty of the sheristadar to collect the tracking report. However, anybody can track the delivery or the movement of the postal articles from the India Post Website.
[8] It appears that the counter claimants were negligent in providing the postal receipt to the sheristadar. Apparently, it may be said the impugned order is not vitiated by any legality or material irregularity. But that cannot be a ground for dismissal for non-prosecution. When the summons issued does not return and it was at the stage of tracking whether it was delivered or not, it cannot be treated as the failure of taking steps. It is a stage where the service report is awaited. Thus, this court is persuaded to interfere with the impugned order dated 02.01.2019 and accordingly, the same is set aside and quashed.
[9] The petitioner had filed the petition for restoration which was registered as Civil Misc. (Restoration) 08 of 2019. However, filing of the petition for restoration was delayed by 43 days. For that purpose, the petitioner filed one special petition for condonation of delay being Civil Misc. 08 of 2019.
[10] By the order dated 24.06.2019, the Civil Judge, Senior Division dismissed the petition for condonation, observing that the explanation that had been made for condonation of delay, cannot be held sufficient and thus the reason so assigned for condoning the delay was not accepted by the Civil Judge. The reasons those were given by the counter claimants is that the counter claim was dismissed on 02.01.2019, but the petitioners had gathered the information of such dismissal for non prosecution on 14.02.2019 and on that day itself, they applied for the certified copy which was received on 02.03.2019, though it was ready for delivery on 19.02.2019. Thereafter, they took further time to file the restoration petition and in the process of obtaining the signature for the petitioners who office is at Kolkata. Thus, a considerable time wasted. Finally, on 18.03.2019 the said petition for condonation delay was filed. In the meanwhile, the delay of 43 days was registered. The defendants of the counter claim resisted the prayer for condonation with vehemence. According to them, for explaining such delay no document whatsoever was placed before the court. Particularly when a plea that the authorize signatory of the counter claimants was suffering from illness, raised the medical record was required to be produced.
[11] Having noticed the contentions, the Civil Judge having relied on a decision of the apex court in Ram Nath Sao Vs. Gobardhan Sao reported in AIR 2002 SC 1201 has observed that even though the sufficient cause is liable to get a liberal construction to advance the substantial justice but when it is registered, the delay is not bona fide or is outcome of serious negligence, the court should not accept the casual explanations. But in Ram Nath Sao (supra) the apex court had occasion to observe as well, as follows:
"However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high causing enormous loss and irreparable injury to the party against whom, the lis terminates and defeating valuable rights of such a party to have the decision on merits. The courts should strike balance between the resultant effect of the order it was going to pass upon the parties either way." [Emphasis added]
[12] The Civil Judge having referred the maxim Vigilantibus Non Dorminentibus Jura Subveniunt, which means law helps those who are vigilant and not indolent, has observed that the counter claimants were not sufficiently vigilant and as such they discretion, may not derive benefit of conferred by Section 5 of the Limitation Act.
[13] Thus, the petition for condonation being Misc. (Condonation) 08 of 2019 has been rejected. Consequent thereupon, by the order passed dated 24.06.2019, the petition for restoration being Civil Misc. (Restoration) 08 of 2019 was dismissed.
[14] Mr. Saha, learned counsel has submitted that from a reading of the order itself it will come to the fore that there was sufficient alert to take the appropriate action. Moreover, the delay is not inordinate which would frustrate the ends of justice, when the petitioners instituted the counter claim to protect this huge stake.
[15] Mr. S. Pal, learned counsel appearing for the plaintiff-respondents has submitted that for the inaction of the counter claimants, the entire proceeding got berserk to serious prejudice of the plaintiff-defendants, the respondent herein.
[16] Having considered all aspects, as stated, and particularly considered the causes as assigned for condonation of delay, this court is of the view that the court has appreciated the explanation in a hot haste and without considering the judgment which it has been relied but in the perspective. As such, this order cannot stand the scrutiny of law. Accordingly, the order dated 24.06.2019 delivered in Civil Misc. (Condonation) 08 of 2019 stands interfered with and set aside. Consequently, the order dated 24.06.2019 passed in Civil Misc. (Restoration) 08 of 2019 connected to Misc. (CC) 01 of 2019 as well is set aside.
[17] The Sheristader of the court of the Civil Judge (Sr. Div.), Court No.2, West Tripura, Agartala, by dint of the registration receipt submitted by the counter claimants, the petitioners herein shall downloaded the tracking report to find out whether the summons are delivered or not and after that he will place the note on the order sheet, based whereupon the Civil Judge may pass the appropriate order in respect of service, if required.
[18] In terms of the above observation, this application stands allowed.
However, in view of the observations herein there shall be no order as to costs.
The Registry is directed to send a copy of this order forthwith to the court below.