Lalboi T. Haokip vs Ngulminlen Sitlhou, & Anr.

Heard Shri L. Sharat Sharma, the learned counsel appearing for the petitioner and Shri T. Rajendra, the learned counsel appearing for the respondents.

The present Civil Revision Petition has been filed by the petitioner against the order dated 29-09-2016 passed by the Learned Civil Judge, Senior Division, Churachandpur in Judl. Misc. Case No. 103 of 2016 (Ref:-O.S. No. 13 of 2016) whereby the learned Civil Judge has refused to condone the delay in filing the written statement.

According to the petitioner, in the month of January, 2007 the petitioner approached the respondent No. 2 for allowing him to run a school in a piece of agricultural land under Patta No. 98/247 measuring an area of 1.33 acres situated within Torbung Revenue Village for a period of five years commencing from January, 2008 till December, 2013 on payment of a monthly rent of Rs. 1,500/- (rupees one thousand five hundred) and for that purpose, a Lease-Deed dated 05-07-2007 was signed between the petitioner and the respondent No. 2.

After the expiry of the period specified in the said lease-deed, the respondent Nos. 1 and 2 filed a suit before the Court of Civil Judge, Senior Division, Churachandpur for eviction and recovery of possession from the petitioner in respect of the said agricultural land and a summon issued thereof was received by the wife of the petitioner on 26-03-2016 and in pursuance thereof, the petitioner entered appearance through his counsel on 12-04-2016. On 05-05-2016 the wife of the petitioner filed a application being Judl. Misc. Case No. 9 of 2016 which was dismissed on 28-07-2016 with the direction that the written statement be filed on 08-08-2016. On 08-08-2016 the petitioner filed his written statement along with an application being Judl. Misc. Case No.103 of 2016 praying for condonation of delay in filing thereof. The said application was contested by the respondents herein contending inter-alia that the filing of the said application being Judl. Misc. Case No. 9 of 2016 was nothing but a malafide motive of the petitioner in collusion with his wife to defeat the very purpose of the suit and the same could never be the explanation for inability to file the written statement within the prescribed period and the reasons assigned therein were not sufficient to condone the delay in filing the written statement. The Learned Civil Judge, after having heard the learned counsels appearing for the parties, was of the view that no sufficient cause was shown to by the petitioner for his inability to file the written statement within the statutory period of 90 days and his application being devoid of any merit, was liable to be dismissed. While dismissing the said application, the Learned Civil Judge observed that it was a laxity and gross negligence on the part of the petitioner for not filing the written statement in time.

Being aggrieved by the said order dated 29-09-2016, the instant Civil Revision Petition has been filed by the petitioner contending inter-alia that the Learned Civil Judge failed to exercise its discretion properly; that the Learned Civil Judge failed to see that the provisions under Order VIII Rule 1 of the CPC was directory in nature and not a part of substantive law and that the learned Civil Judge exercised its discretion arbitrarily and whimsically.

The present civil revision petition has been filed under the provisions of Section 115 of the CPC and not under the provisions of Article 227 of the Constitution of India. Shri T. Rajendra, the learned counsel appearing for the respondents has vehemently submitted that as a result of the amendment, the scope of Section 115 of the CPC has been curtailed and therefore, the impugned order cannot be varied, reversed in exercise of powers under Section 115 of the CPC for the reason that had the order been made in favour of the petitioner, it would not have finally disposed of the suit. In support of his contention, he has relied upon the decision of the Hon''ble Supreme Court in Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers and ors, reported in (2003) 6 SCC 659 wherein one of the issues was as regards the scope of Section 115 of the CPC after the amendment being made in the year, 2002, the Hon''ble Supreme Court held: "A plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is "yes" then the revision is maintainable. But on the contrary, if the answer is "no" then the revision is not maintainable. Therefore, if the impugned order is interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subjectmatter of revision under Section 115."

It is not in dispute that prior to the amendment by way of CPC (Amendment) Act, 1999, the proviso reads as under:

"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 a suit or other proceeding, except where -

(a) the order, if it had been made in favour of 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."

The said Amendment Act, 1999 amends the proviso to Section 115 so as to delete Clause (b) thereof. The said amendment became necessary on account of the recommendation of the Malimath Committee and it means a clear departure from the provisions of Section 115, which stood before the amendment. The object of the amendment is to reduce the delay in the disposal of cases before the civil court. The effect of the amendment appears to be to bar interference in revision against interlocutory orders, even where there is failure of justice or irreparable injury. In other words, the effect of the amendment is that the revisional jurisdiction of the High Court is substantially curtailed and cannot be exercised unless requirement of the proviso is satisfied. Thus, it is seen that as has been held in Shiv Shakti Coop. Housing Society case, the law as regards the effect of the amendment is clear and can be said to be well settled by the Hon''ble Supreme Court.

In the present case, the civil revision petition has been filed against the order by which the application for condonation of delay in filing the written statement was rejected by the Civil Judge, Senior Division, Churachandpur who was not satisfied with the cause shown to by the petitioner for his inability to file written statement within 90 days. According to the learned Civil Judge, the application being not only ill-conceived and devoid of merit, it was a case of laxity or gross negligence on the part of the petitioner. The para Nos. 1 to 3 of the application for condonatiton of delay are reproduced herein below:

"1. That the petitioner is the defendant in the above referred suit. He is a government employee serving as a Senior Geologist in the Geological Survey of India and is now posted at Nongrim Hills, Shillong, Meghalaya, where he has been staying.2.

That, the defendant was informed by his wife that she received a summon from the Hon''ble Court on 26-03-2016 in connection with a case filed against him by the land owners of his Kingston Public School in a Churachandpur court and his wife asked him to come out to Manipur to consider about the case. His wife did not know and tell the details of the case. However the defendant tried to come out home from his posting place. But it is very difficult in getting leave from his office. So he advice his wife namely Lamkhochin Haokip alias Mery to consult and engage a lawyer as his counsel and if possible to pray the court to implead her as a defendant or to represent him.

That accordingly the wife of the defendant filed a petition on 05-05-2016 to the Hon''ble Court to implead her as a defendant to the suit or to allow her to represent her husband. The Hon''ble Court register the petition as Judl. Misc. Case No. 9 of 2016 and was pleased to pass an order to put up the main suit after disposal of the Misc. Case vide order dated 05-05- 2016. The Hon''ble Court was pleased to dismiss the petition on 28-07-2016 and directed the defendant to file his written statement on 08-08-2016.

That the defendant was informed of the order of the Hon''ble Court and asked him to come out Manipur without fail this time. Accordingly he came out and met his counsel and prepared the written statement as soon as he arrived."

After having considered the averments made in the application, the learned Civil Judge being not satisfied with the cause shown to by the petitioner therein, rejected the said application. It may be noted that to condone or not to condone the delay in fling the written statement is a matter of discretion of the learned Civil Judge depending upon the facts of each case and in other words, since the satisfaction is of the Civil Judge, it cannot be substituted by that of this court. Be that as it may, from the perusal of the averments made by the petitioner in the said application, it is seen that there is no sufficient cause to condone the delay. The only reason given by the petitioner for condonation is that his wife being desirous to represent the petitioner, moved an application on 05-05-2016 which was dismissed on 28-07-2016 with the direction that the written statement be filed on 08-08-2016. It may be noted that there is no need of such application being filed to represent the petitioner by his wife and his wife could have represented the petitioner either through a general power of attorney or a special power of attorney being executed by the petitioner in favour of his wife. As has been rightly held by the Ld. Civil Judge, there was gross negligence on the part of the petitioner for non-filing of the written statement in time. Therefore, this court is of the view that there is no infirmity in the impugned order passed by the learned Civil Judge and no interference is called for by this court under Section 115 of the CPC.

For the reasons stated herein above, the present Civil revision Petition fails and is accordingly dismissed with no order as to costs.