Tara Sohkhlet vs Nikel Khongmawloh & Anr

H. S. Thangkhiew, J

This Second Appeal has been preferred under Order 6 of the Meghalaya High Court (Jurisdiction over District Council Courts) Order, 2014 read with Article 227 of the Constitution of India. The impugned order in question dated 12.03.2020, was passed by the Additional Judge, District Council Court, Shillong in Misc. Civil Appeal No. 1 of 2017 setting aside the order dated 17.05.2016, passed by the Learned Presiding Officer in Misc. Case No. 2 of 2013, arising out of Title Suit No. 1 of 2001.

The brief facts are that a suit had been instituted by one Shri. Esteid Khongmawloh and Shri. Kania Khongmawloh as plaintiffs wherein the appellant had been arrayed as defendant before the Additional Subordinate District Council Court for declaration of right, title and interest with regard to a plot of land known as 'Sngapblai'. This suit came to be finally dismissed for non-prosecution on 27.09.2002. After a gap of more than 10 (ten) years, the respondents No. 1 and 2 herein, who are not the original parties (plaintiffs) to the suit approached the Court of the Presiding Officer, District Council Court, by filing a Misc. Application being Misc. Case No. 2 of 2013 for restoration, condonation and substitution in place of the original parties (plaintiffs) to the suit. The Trial Court vide order dated 17.05.2016, rejected the said application and the respondents being aggrieved thereby preferred an appeal being Misc. Civil Appeal No. 1 of 2017 before the Lower Appellate Court, that is the Court of the Additional Judge, District Council Court. The Lower Appellate Court then by judgment and order dated 12.03.2020, set aside the order of the Trial Court, condoned the delay, allowed the restoration of the Title Suit and substituted the respondents No. 1 and 2 as plaintiffs. Being aggrieved thereby, the instant Second Appeal is before this Court.

The substantial questions of law, that have arisen in the instant Second Appeal had been framed as follows:

i. Whether a person/persons who is/are not parties to a suit can be substituted in place of a plaintiff who is still alive.

ii. Whether a person who has not been arrayed as party in a suit can file an application for restoration of a suit which has been dismissed for default.

iii. Whether a petition for condonation of delay is maintainable if filed by a person who is not party to a suit when plaintiff is still alive.

iv. Whether there were sufficient grounds for condonation of the delay of 10 years for restoration of the suit.

v. Whether the suit had abated as against (L) Ka Bali Khongmawloh who was substituted in place of (L) Esteid Khongmawloh in view of the statement made in the authorization letter dated 11/1/2013 (Page 39).

Mr. T.T. Diengdoh, learned Senior counsel assisted by Mr. R. Kharsyad, learned counsel for the appellant has submitted that on the substantial questions of law framed, questions No. 1, 2 and 3 are interrelated, inasmuch as, the issues involved deal with the question as to whether a person who is not party to a suit can participate, or file any petition or application, when one of the original plaintiffs is still alive. To this, he submits that substitution of a party in a suit would only arise in the event of the death of a plaintiff or a defendant in terms of Order 22 of the CPC. Learned senior counsel then submits that the respondents in these proceedings are desirous of stepping into the shoes of U Kania Khongmawloh, by virtue of a purported authorization executed by him, while he is still alive and that too after a period of over 10 (ten) years since the dismissal of the suit. He submits that, similarly the application under Order 9 Rule 4 read with Rule 9 and Section 151 CPC, for restoration of the suit is also not maintainable in view of the fact that, Order 9 Rule 4 contemplates the filing of application for restoration of a suit by a plaintiff and not by any third party. It is further submitted that, since Kania Khongmawloh who is one of the original plaintiffs is still alive, the respondents being strangers to the suit, have no locus standi to file any petition for setting aside the order of dismissal, that too after a lapse of over 10 (ten) years.

The learned senior counsel on the issue of the sufficiency of grounds for the condonation of 10 (ten) years for restoration of the suit submits that, even assuming that the application for condonation of delay is maintainable or has been filed by the plaintiff (Kania Khongmawloh) himself, the reasons set out in the application do not make out any sufficient cause to warrant the exercise of the discretionary powers of the Court to condone the delay. The reason given that the plaintiff was bed ridden for 10 (ten) years and on recovery on 11.01.2013, had instructed the respondents to re-agitate the matter, according to the learned senior counsel is difficult to be accepted especially in the absence of any supporting medical certificates. Moreover, he submits in Para-9 of the application itself, a conflicting ground has been taken by the respondents by the averment that they came to know about the dismissal order dated 27.09.2002 only when they were summoned by the police in January, 2013.

In support of the submissions, the learned senior counsel has relied upon the following decisions:

Esha Bhattacharjee V. Raghunathpur Nafar Academy, (2013) 12 SCC 649 at page 659.

Brijesh Kumar V. State of Haryana (2014) 11 SCC 351: at page 353.

Basawaraj V. Land Acquisition Officer, (2013) 14 SCC 81, at page 86.

Maniben Devraj Shah V. Municipal Corpn. Of Brihan Mumbai, (2012) 5 SCC 157, at page 168.

Balwant Singh V. Jagdish Singh, (2010) 8 SCC 685: (2010) 3 SCC (Civ) 537, at page 696.

Learned senior counsel submits that the Lower Appellate Court in allowing the application for condonation of delay totally failed to appreciate the settled law operating in this field, inspite of the numerous authorities that had been cited by the appellant and in fact, failed to discuss or take them into consideration.

With regard to the question as to whether the suit had abated against (L) Ka Bali Khongmawloh who had been substituted in place of (L) Esteid Khongmawloh original plaintiff No. 1, the learned senior counsel has drawn the attention of this Court again to the application under Order 9 Rule 4, wherein, at Para-3 the respondents have averred that in place of (L) Esteid Khongmawloh, Smti. Bali Khongmawloh had been substituted which he submits took place in the year 2001, as per the records. This fact is important to note he submits, because curiously the respondents had annexed a copy of a purported authorization dated 14.12.2000, with a thumb impression of Ka Bali Khongmawloh, by way of which it appears, she had entrusted her son U Kania Khongmawloh with the management of the land called 'Sngapblai', whereas the records reflect that she has got herself substituted in the year 2001, which makes the said document questionable as to its authenticity. He further submits that, the purported authorization letter dated 11.01.2013 (Page-39 of the Appeal Memo) of Kania Khongmawloh has indicated therein that, Ka Bali Khongmawloh had expired several years ago, which therefore, necessarily means that in terms of Order 22 Rule 2 and 3 CPC, the suit had abated in respect of Ka Bali Khongmawloh as no substitution had been made in her place, within the time limit. Learned senior counsel strongly contends that the learned Lower Appellate Court had totally deviated from the pleading of the respondents by holding that they could step into the shoes of Ka Bali Khongmawloh (deceased plaintiff No. 1) where in fact, the application was for them to be permitted to replace U Kania Khongmawloh (plaintiff No. 2).

The learned senior counsel while rounding of his arguments, submits that an attempt has also been made by the respondents that the Title Suit had been filed by (L) Esteid and U Kania Khongmawloh in their representative capacity as elders of the clan and children of Ka Bali Khongmawloh. This contention of the respondents, he submits is belied by a plain reading of the plaint wherein, it has been stated that the suit land (grove) had been handed to the original plaintiffs by one U Edison Khongmawloh and they have been exercising their rights over the same and that they being rightful owners of the property who entitled to a decree that they were owners of the land. In conclusion, the learned senior counsel submits that, the respondents as such, have no locus standi to intervene or seek revival of a suit that had been dismissed over 10 (ten) years ago and the impugned judgment being bad in law was liable to be set aside.

Mr. S.M. Suna, learned counsel for the respondent in his reply submits that the suit was filed by (L) U Esteid Khongmawloh and Kania Khongmawloh in their representative capacity as attorneys for their family as evidenced by the authorization letter given by (L) Bali Khongmawloh in favour of U Kania Khongmawloh and that further the land and property dispute is not a self-acquired property of the original plaintiffs, but is family property owned and acquired by the family in the name of (L) Esteid Khongmawloh. He further submits that even U Kania Khongmawloh (second original plaintiff) had stated in his letter of authorization dated 11.01.2012, that he is unable to pursue the pending case of the family as such, had handed over the matter to his sisters, nephews and nieces, and the respondents being the said nephew and niece have therefore sought to restore the suit and implead themselves as plaintiffs. He therefore, submits that the substantial question of law as to whether persons who are not parties to a suit be substituted in place of a plaintiff still alive or whether a person who is not been arrayed as party in a suit can file an application of restoration, does not arise by virtue of the authorization of the other family members to represent the family.

Coming to the other ground, as to whether there existed sufficient grounds for condonation, the learned counsel submits that the suit of the respondents was dismissed by the Trial Court on 27.09.2002 for non-prosecution, when the trial of the suit was yet to commence and by application of Article 137 of The Limitation Act, 1963 wherein the prescribed period for filing of restoration is 3 (three) years, the actual delay is not 9 years 5 months but is 6 years 5 months. Learned counsel further submits that, the respondents have categorically stated in their condonation application that one of the original plaintiffs (U Kania Khongmawloh) had met with an accident and was bed-ridden for several years till the month of January, 2013, and as such, could not inform the other family members about the pending suit which had been left unattended since 2002. In support of the plea for condoning of delay in filing the restoration application has placed reliance on the following decisions:

i. (2003) AIR SCW 969 G. Christhudas & another- Vrs- Anbiah (dead) & another.

ii. (2006) 3 GLT 828 Nasrul Islam Borbhuiya -Vrs- Yakub Ciddie & another.

iii. (1998) SCC 1234 N. Balakrishnan -Vrs- M. Krishnamurthy

iv. (2009) 13 SCC 192 State of Karnataka Vs.Y. Moideen Kunhi (Dead) By Lrs. and others

v. (1997) 1 SCC 261 Rama Ravalu Gavade Vs.Sataba Gavadu Gavade (Dead) Through Lrs. and another.

With regard to, whether the suit has abated against the original plaintiff No. 1, the learned counsel has not advanced any arguments but has only submitted that justice would be served if the respondents be allowed to contest the suit on its merits with liberty being given to them to tackle the question of the abatement of the suit against the original plaintiff No. 1 apart from other issues.

I have heard the learned counsel for the parties. The issues herein, clearly appear to be questions of mixed law and fact. The substantial questions of law as formulated, though the legal position surrounding the same are clear, the decision of the Courts below however, have to examined as to whether the set legal principles have been followed or disregarded, or whether it violates the settled position of law.

Issues No. 1, 2 and 3 being interconnected will be taken up together for consideration. It is noted that, the respondents had filed 3 (three) applications before the Trial Court, one for restoration of T.S. No. 1 of 2001, the second for condonation of delay, and third for substitution of the original plaintiff No. 2 (Kania Khongmawloh). The first application for restoration under Order 9 Rule 4 read with Rule 9 and Section 151 CPC of the suit which had been dismissed for default since 27.09.2002, has been made by Ka Khilan Khongmawloh and one U Nikel Khongmawloh, who are supposedly the niece and nephew of the original plaintiff No. 2 (Shri Kania Khongmawloh). The original plaintiff No. 2 though still surviving is not the petitioner/applicant in the restoration application. Order 9 Rule 4 contemplates a situation where a plaintiff may bring a fresh suit or the suit be restored to file on an application showing sufficient cause. In the instant case, the persons seeking restoration are neither the original plaintiffs but claim to possess locus by virtue of being the niece and nephew of the original plaintiff No. 2. Similarly, substitution has been sought of the original plaintiff No. 2 (Kania Khongmawloh) who is still alive by the respondents on the basis of an authorization purportedly executed by him. In terms of Order 22 of the CPC, substitution of a party in the suit would only arise in the event of the death of a plaintiff or defendant which is not the situation herein.

Coming to issue No. 4, even if it is assumed that the condonation application was filed by the original plaintiff No. 2 himself and not by the respondents, the delay of over 10 (ten) years in seeking the setting aside of the dismissal order and restoration of the suit has not been sufficiently explained as can be seen from the application itself. The explanation on the part of the respondents which is given in Para- 7 and 8 is reproduced herein below:

"7. That your Humble Applicants states that during the proceeding of T.S. No. 1 of 2001 before the Hon'ble Court of Shri. S. Kharsyiemlieh the then Presiding Officer, Subordinate District Council Court, Shillong, the plaintiff (Shri. Kania Khongmawloh) met an accident while working in the Groves and from that time he was bed ridden.

That the Applicants states that on 11/1/2013 the Plaintiff (Shri. Kania Khongmawloh) who somehow regain from his illness authorized his near relatives to look after and manage the T.S. No.1 of 2001 as he himself is unable to proceed with the case as he was suffering for so long. Immediately in 15/1/2013 the relatives of the Plaintiff held a Family Meeting and authorized the applicants above named to take up the case."

From the explanation, which is not supported or substantiated by any materials, sufficient cause cannot be said to have been made out to condone the long delay. Coupled with this fact, is as with the other applications, the petitioners who have come forth are strangers to the proceedings, with the only claim to locus is by virtue of them being the niece and nephew of the original plaintiff No. 2.

On the question and assertion by the respondents that the suit had been instituted in a representative capacity, the same is not borne out by the plaint itself and as such, this aspect does not deserve any consideration.

The Trial Court rightly had rejected these applications by holding that the respondents who are not party to the suit cannot come after a period of 10 (ten) years for restoration or otherwise, of the suit. The Lower Appellate Court, however, firstly observed that as the original plaintiff No. 2 was the son of the plaintiff No. 1 who expired during the pendency of the suit, the respondents who are the descendants therefrom, could step into the shoes of the plaintiff No. 1. This finding was rendered in spite of the undisputed fact that the applications were specifically for the substitution of the respondents in place of the original plaintiff No. 2 and were not for seeking the setting aside of abatement of the suit against the original plaintiff No. 1, or for their substitution as legal heirs. This finding being patently illegal, therefore, is bound to be interfered with. Similarly, on the question of condonation of delay, the acceptance thereof of the explanation tendered by the respondents that the respondents had no knowledge about the suit until 2013, when the same was revealed to them by the original plaintiff No. 2 defies any logical reasoning or basis and is also liable to be interfered with.

The Learned Lower Appellate Court in arriving at the findings and setting aside the order dated 17th May, 2016 passed by the Trial Court had observed that the same was also in view of the principles of natural justice, equity and good conscience coupled with the circumstances of the case. Though these principles are applied in certain cases, especially when the exercise of discretionary powers is called upon while adjudicating such matters where only the spirit of the Civil Procedure Court is applicable, the manner of exercise of this discretion by the Lower Appellate Court in the instant matter, cannot be said to be in any manner in consonance with the said principles.

Though the questions that have arisen are of mixed law and fact, the order of the Lower Appellate Court deserves to be interfered with, without further dwelling on any other aspect. I have perused the judgments as cited by the parties, but in view of the findings and decision given herein above, the same are not needed to be discussed or gone into for the purposes of disposing of this Second Appeal.

For the reasons aforesaid, this Appeal stands allowed and the judgment and order dated 12.03.2020 passed by the Court of the Additional Judge, District Council Court, Shillong in Misc. Civil Appeal No. 1 of 2017 setting aside the order dated 17.05.2016 passed by the Learned Presiding Officer in Misc. Case No. 2 of 2013 arising out of Title Suit No. 1 of 2001, is set aside and quashed.

The parties to bear their own costs.

Lower Court records to be transmitted back forthwith.