IN THE HIGH CoURTOF S|KK|M-`~. a.-,e GANGTOK 1. CivilMisc.Application No.7of2006 2. Civil lvlisc.Application No.8 of2006 3. CivilMisc.Application No.9of2006 4. Civil Misc. Application No.10 of2006 5. Civil Misc.Application No.11 of2006 6. Civil Misc. Application No.12 of2006 1. RamKumarGoyel, S/O Lt. Bal Mukund Goyel R/O Jorethang, Represented by his Constituted Attorney Shri Raj.esh Kumar Agarwal, 21/2 Mile, Sevoke Road, P.O.Sevoke .Road, P.S. Sikkim Food & General Industries, Private Limited, Jorthang, South Sikkim. 3. The Board of Directorsof M/S Sikkim Food & Gen.Industries Pvt. Limited, Jorthang Bazar, South Sikkim. ...... Applicants/Adp Versus 1. Bhuwansinghpradhan Respondent in CMA No.7 of 2006. 2. Krishna BahadurDarjee Respondent in CIVIA No 8 of 2006. 3. TingeyBhutia Respondent in CMA No. 9 of 2006. 4. ManiKumarGurung Respondent in CIVIA No.10 of 2006. 5. Kumarpradhan Respondent in CMA No.11 of 2006. 6. PremKumar Gurung Respondent in CMA No.12 of 2006. All residents of Singtam , P.O. Singtam, East Sikkim. For the Appellants Mr. Ashok Banerjee, learned Senior Counsel assisted by Mr. Sudipto Majumdar and Mrs. Laxmi Chakraborty, learned Counsel. FortheRespondents : Mr. N. Rai, learnedcounsel assisted by Miss Jyoti Kharka, learned Counsel. Dateoforder : 26±hse tember. 2006. ORDER A.P. Subba Since all the above Miscellaneous Applications arise out of similar facts and raise identical questio.ns of law, they were heard together and are being disposed of by this common order. All the above applications have been filed by one Shri R. K. Goyel, resident of Jorthang, South Sikkim and two (2) others u/s 5 of the Limitation Act,1963, for condonation of delay of 510 days in filing appeals under Order XLI Rule 1 of the Code of Civil Procedure for setting aside the ex parte decrees dated 15.12.2003 passed by the learned District Judge, Special Division - 11 at Gangtok in Civil Suit Nos.5, 6, 7, 8, 9 and 10 of 2002. `, .,`1 I lt is not necessary to narrate facts of the case in detail for the purpose of disposing of the present applications. Suffice it to say that the Civil Suits Nos.1 of 1992, 2 of 1992, 3 of 1992, 4 of 1992, 5 of 1992 and 6 of 1992 filed by each of the Respondents separately in the Court of the Ld. Civil Judge, (E) at Gangtok, for declaration that he was a government employee and not private employee of Sikkim Food Preservation Factory, Singtam, under the management of the Applicants/Appellants at the relevant time, that the letter of appointment issued by the Applicants/Appellants I, -S ..,` c' 'fl-ifa i...A I,-,, •'`r 7:;,I was bad in law and liable to be set aside and that he was entitled to the payment of the difference of salary for the period between 2.7.1987 to 23.6.1995, was decreed on 19.6.1998. Appeal Nos. 7 of 2002, 8 of 2002, 9 of 2002,10 of 29002,11 of 2002 and 12 of I 2002 preferr,ed by the Applicants/Appellants before learned District Judge (E&N) at Gangtok were dismissed vide judgment dated 18.09.1999 and the decre?s passed by the learned trial Court were duly Confirmed. The,Second Appeal Nos. 2 of.1999, 3 of 1999, 4 of i999, 5 of 1999, 6 of 1999 and 7 9f 1999 preferred before this High Court, impugning the above orders, also came to . + be dismissed. After the Second Appeals wer`e dismissed by this Court, the Applicants/App?llants moved the Hon'ble Supreme Court. However, all the Special Leave Petitions met with the same fate. After the SLPs were .dismissed, the Plaintiffs/Respondents put the decree in execution in the Court of the Ld. Civil Judge, East at Gangtok. However, ithe executing Court dismissed all the executic)n petitions on 30.6.2001 on the ground that the decrees being declaratory in nature„were incapable of execution and the plaintiffs/Respondents might file separate suits for the reliefs claimed in the execution petition. Writ Petition,Nos. 46 of 2001, 47 of 2001, 48 of 2001, 49 of 2001, 50 of 2001 and 51 of 2001 filed by the Plaintiffs/Respondents thereafter before this High Court under Article 226 of the Constitution seeking certain directions to the State, were disposed of,with some directions holding that the High Court was not the appropriate forum for the reliefs prayed for. After the Writ Petitions were .disposed of, the Plaintiffs/Respondents instituted fresh money suits in the Court of Ld. District Judge, Special Div.Il, East at Gangtok in the year 2002 seekiiig the same reliefs which were sought in the Writ Petition and the execution petition. The said money suits were decreed ex parte on 5.12.2003 on default of the Applicants/Appellants to appear and to contest the suits. Against these ex parte decrees, the Applicants/Appellants moved applications under Order IX Rule 13 CPC for setting aside the same. However, the said applications were rej.ected by the learned District Judge, Special .Division 1[ after hearing on 15.9.2004. Thereafter, neither the . Applicants/Appellants filed any appeal against' the ex parte decree nor the decrees were put into execution for ;ver one year, (1 year 2 months and 14 days to be precise). The Applicants/Appellants ` came to know of the execution petitions having been filed against them only when notices of the same were served on them on 7.2.2006. The appeals were then filed on 3.3.2006 along with the I present applications for condonation of `delay of 510 days. In support of the prayer for condonation of delay, it is stated that the main reason for the delay in filing the appeals was the terminal illness of the mother of the Applicant /Appellant No.1. It is stated that she was admitted in Paramount Hospital Pvt. Ltd. at Siliguri and was under treatment there from the month of September 2003 till She breatiled her last on 23,12.2003. It was because of the said long illness and death of the mother of the .. Applicant /Appellant No.1 that he could. not remain in touch with his Counsel for taking effective steps to defend the suit. It is further stated that the Applicant /Appellant No.1 being the eldest `r` male member of the family, was confined to Siliguri for performing the last death rituals of the deceased mother, wh'ich lasted till the first week of January 2004. It was only after the completion of the last death rituals in the month of January 2004, that the Applicant /Appellant No.1 was free to take effective steps to defend the suit. However, to his ill luck, the suits were decreed ex parfe in the meantime. When he contacted his Counsel in the first week of ` January 2004 for taking steps in this regard, it came to his notice that the Courts in Sikkim had been closed for winter vacation from 2nd January to 2nd February 2004 and hisicounsel opined that the limitatjon would not run during the closure of the Courts, and accordingly, he waited till the reopening of the courts for filing t the necessary applications for setting aside the ex parte decrees. But when the Applicant /Appellant No.1 reached the District Court to present the applications on 2nd February 2004, he c`ame to know that even though the Courts were closed for 1 winter vacation, the offices were open and on coming to know of this, he filed the said applications for setting aside the ex parfe decree along with applications for condonation of delay. ~1u These applications were rej.ected by the Ld. District Judge, " Special Div.Il vide orders passed on 15.9.2004. In the meantime, ' the Applicants/Appellants No.1's only brother took ill with high blood pressure, sugar, pancreatitis, urea, etc. and had to be . urgently shifted to Chennai for better management. Such illness of his brother and his treatment in a hospital located away from Sikkim, rendered the Applicant /Appellant No.1 helpless and being under the pressure of such adverse circumstances, he had to remain out of touch with his Counsel, thereby losing total track of the case. Over arid above, the bona fide mistake committed by his Counsel on the question of period of lirriitation during the period of closure of the Courts also added to the delay. Hence, it was prayed that the delay might be condoned in filing the present Appeals. In the replies filed by the Respondents, it was denied that the grounds mentioned by the Applicants/Appellants were sufficient cause within the meaning of See.5 of the Limitation Act. It was contended that the Applicants/Appellants had been negligent from the ve'ry beginning of the matter causing undue harassment to the Respondents. In view of such negligence, the Applicants/Appellants themselves were to be blamed for the delay in the case. It was also contended that the orders dated 15.9.2004 were not ex parte orders, in so far as, the same were passed in presence of the learned Counsel for the Applicants/Appellants. It was also contended that the Applicants/Appellants filed the present appeal only after the Respondents put the decree jn execution, which goes to sh`ow that it has been filed only with a view to avoid the payment of decretal dues. Accordingly, jt was prayed that all the applications for condonation of delay may be rejected with exemplary cost. At this stage, it is pertinent to mention that the Applicants/APpellants in the rejoinder. affidavits filed by them in reply to the objectiohs filed by the Respondents, raised further ground stating that the whole litigation was being looked after by the younger brother of Mr. Ratan Kumar Goyel and other agents engaged by him including the officers and, staff connected with Food and General Industries Pvt. Ltd. The Appellant/Applicant No.1 having full faith in his brother did not feel the necessity of paying any personal attention to the matters. However, in November 2004 the brothers fell out with each other over certain personal disputes. Until this time, the Applicant/Appellant No.1 was confident that the whole affair was being looked after and `\, managed properly by his brother and the Advocates engaged by him. However, such trust reposed by him on his brother was shattered when he came to know about the true state of affairs on receiving the show cause notices issued by the executing Court for attachment of his personal bank account and his personal properties on 7.2.2006. The Applicant/Appellant No.1 then contacted the lawyer who was in charge of the litigation and 9 initiated proper steps to prefer appeals and finally filed the present Appeals on 2.3.2006. 7. The contention raised by Mr. N. Rai, the learned Counsel for the Respondents in this regard, is that, these grounds having not been taken jn the original condonation applications earlier fjled aiong with the applications under Order lx Rule 13 CPC were nothing more than after thoughts and cannot be taken into consideration. Mr. Ashok Banerj.ee, learned Senior Counsel assisted by Mr. S. Majumdar and Mrs. L. Chakraborty, learned Counsel appearing on behalf of the Applicants/Appellants and Mr. N. Rai, learned Counsel assisted by Miss Jyoti Kharka, learned Counsel appearing on behalf of the Respondents were heard. Mr. Ashok Banerjee, learned Senior Counsel submitted that even though there was long delay jn filing the Appeals, the delay was carised by circumstances beyond the control of the Applicants/ Appellants. There was, according to him, no lack of diligence on the part of the Applicants/Appellants in pursuing their case. Over and above, it was also submitted by him that the V Appeals filed by him raised arguable and important points of law, and in view of this, the cause shown by the Applicants/Appellants were sufficient cause for condonation of delay as prayed for. On the other hand, Shri N. Rai submitted that the inordinate delay in the filing of the present appeals was entirely `due to negligence 10 and the lack of diligence on the part of the Applicants/Appellants, 1 and, as such, no case has been made out for allowing the prayer for condonation of delay. 10. The short. question that arises for consideration in all these matters is, whether the causes shown by the Applicants/Appellants for delay, coupled with the additional ground that the Appeal raises important questions of law can be accepted as a sufficient cause within the meaning of See.5 of the Limitation Act, and if so, whether the delay of 510 days can be condoned in the circumstances of the case. ) 11. Before proceeding to take up the above question, it would be relevant to note that the main grounds that have been taken in the present application are more or. less the same as the ones already taken in the applications for condonation of delay earlier filed along with the applications under Order lx Rule 13 CPC in the Court of the Ld. District Judge, Special Division 11, East at Gangtok. It might be recalled that the said Court had vide order dated 15.9.2004, rejected the said applications for setting aside the ex parte decrees along with the applications for condonation of delay. It might. also be recalled that the Applicants/Appellants did not choose to. prefer any appeal against the said order rejecting the application for setting aside the ex parte decree. The present appeal is one filed under Order XLI Rule 1 CPC. 11 12. In support of the above remedy chosen by him by way of Appeal under Order XLI RI CPC instead of usual appeal against the order passed under Order IX Rule 13, the leamed Sr. Counsel submitted that a defendant who -ha§{{;b.een proceeded ex parte has been given number of options under the Code and the options being concurrent, he could go for any4of the options. The learned Counsel placed reliance on the decision of the Supreme Cour+ .in Bhanu Kumar Jain vs. Archana Kumar & Another /2005/ 7 SCC 787. Based on the decision the learned counsel submitted that a defendant in such case can file an application under Order lx Rule 13 CPC or prefer an appeal against the ex parte decree under Sec. 96 (2) of the Code or file a review or even institute a suit on the ground of fraud. All these remedies which are available to the Applicants/Appellants.r are concurrent, submitted the learned Counsel. It is his further submission that the different remedies can be availed of at the same time or one after another, except that in the event of an Appeal filed u/S 96 (2) CPC being dismissed, the defendant cannot fall back upon the provisions of Order lx Rule 13 CPC. 13. A perusal of the above decision goes to show that the learned Counsel is well supported by the law laid down therein, in so far as, it has been clearly observed that a party whose application under Order IX Rule 13 CPC for sTh:tting aside the ex parte decree has been rej.ected, has number of options, an appeal 12 u/s 96 (2) of the Code being one of such options. It is the submission of the learned Counsel that he has chosen the option of filing an appeal u/S 96 (2) CPC so that he need not confine himself to the grounds which were already taken in the application under Order ix Rule 13 CPC. There can be.no doubt that the present Appeal being an Appeal filed u/S 96 Clause (2), the grounds available to the Appellant are wider than the grounds which would have been available to the Appellant if he had preferred an Appeal against the order rejecting his application under Order lx Rule 13 CPC. Thus, no fault can be found with the filing of the present appeal. + This brings us to the question of sufficiency or otherwise of the cause shown. In this regard, it may be noted that the causes put forward by the Applicants/App§llants range from terminal illness of the mother of the Applicants/Appellants ultimately resulting in her death in a hospital in Siliguri, West Bengal, followed by performance of elaborate death rituals to illness of the Applicants/Appellants himself and his brother who was looking after the litigation in question on behalf of the •Applicants/Appellants. The different causes also include the t falling out of the Applicants/Appellants with his brother after November 2004. The question is, whether the above causes can \ be taken as sufficient cause within the meaning of Section 5 of the Limitation Act. Admittedly, the present App5;ls have been filed I 13 after a delay of 510 days. It was contended by Mr. N. Rai, the learned Counsel for the Respondents that the Appellants have not explained every day's delay in the condonation of delay application. It is true that the grounds of delay mentioned above do not amount to explanation of each and every day's delay. It is, however, settled law that the doctrine '.every day's delay must be :` explained" does not,.mean that it' should be an explanation covering every hour's delay or for that matter` every second's delay. As per the law laid down by the Hon'ble Supreme Court in Collector, Land Acquisition, Anantnag & Another vs. Mst. Katiji & Others -AIR 1987 SC 1353, the doctr.ir\e ``every day's delay must be explained" does not mean that a pedantic approach should be made. The doctrine must be applied in a rational common sense pragmatic manner. It is relevant to quote the following observation made by the Apex Court in the above case :- "1. Ordinarily a litigant does not stand to benefit by lodging. an appeal late. 2. :::res;n8et,:gc°tnh::#: doejai±Cratn#:#har=h# cause of justice being defeated. As against this when delay is condoned the highest that can happen is that cause would be decided on merits after hearing the parties. 3. IEver that a 's de'a edantic a must be roach Iained, should be does not hour's doctrine must be a QLra.qmaticmanne± 4. lied in second's a rational mean ?The common Sense When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side EEEEEEEiFI ' I E i 14 cannot claim to have vested right in injustice being done because of non-deliberate delay. 5. There is resum tion that occasioned culDable nealic7ence. or deliberately or on account of on account of mala fides. A litiaant does not stand to benefit b resortin to dela ln fact he runs a serious 6. It must be grasped that account rounds 15. udicia is res ected not on ower to le but because and is ex alize in it is ca acted to do so." ustice on of removin technical ustice ( emphasis supplied ). lt is thus clear that the explanation put forward in an application for condonation of delay need not cover every day, every hour or every second's delay. The doctrine, as held above has to be applied in a rational common sense pragmatic manner. 16. Further, it is by now the settled principle of law that while considering the question of condonation of delay a reference to the merits of the Appeal would be desirable. In Ram Ivaf„ Sao vs. Gobardhan Sao reported in AIR 2002 SC 1201 the Apex ` Court has observed as follows:- ,g~ "Acce tance of ex an exce want of tion more bona fide ........... However view of ected the matter Ianation fu so when can be im the ex when stakes facts and law are loss and irre terminates valuable ri rnishedJs-iheffii none -.-.--...---............- ea ence or uted to the edantic Ianation are hi involved arable in either b ht of such a nd refusal inaction or defaultin technical furnished h and/or ar in the case to the default or should uable causin not be oints of enormous ainst whom inaction and to have the ......................... ( emphasis supplied ). decision the lis defeatin on merits. The observation made by the Rajasthan High Court in urban Improvement Trust vs. Poonam Chand AIR 1997 Rajasthan 15 734 deserves mention in this regard. The relevant observation is as follows:- "19. Now it must be taken to be well settled principle of law that before rejecting applications under Section 5 of the Indian Limitation Act and dismissing appeals as barred by lapse of time, uired to lance the Courts of law are as a condition recedent on eals are merits of the a eals and unless the a found to be elessl devoid of merits ordinaril eals on efforts should be made to decide the merits." ( emphasis supplied ). 17. The above view finds full support from the law laid down by the Hon'ble Supreme Court in the recent decision rendered in Divisional lvlanager plantation Division Andaman & Nicobar vs. Ivlunna Barrack & Others AIR 2005 SCW 109 wherein it has been observed that where serious questions of law are raised in the Appeal, the Court should take a liberal view on the application for condonation of delay. 18. It is, therefore, well settled by now that the explanation put forward in the application for condonation of delay should be considered along with the merits of the Appeal and if serious points of law are prima facie found to have been raised in the Appeal, the application for condonation of delay is not to be lightly brushed aside taking into account only the length of delay in the matter. A reference to the merits of the Appeal for the limited purpose of ascertaining whether arguable points of law have been raised would invariably be desirable for advancing the cause of 16 substantial justice while considering the question of condonation of delay u/Sec. 5 of the Limitation Act. 19. We may, therefore, glance throdigh the relevant pleading to ascertain if the Appeals raise any serious question of law. A perusal of the memorandum of appeal along with the accompanying annexures, would go to show that the Plaintiffs/ Respondents in the first suits filed before the Court of Ld. Civil Judge, East, sought for declaration that they were government employees under the Government of Sikkim, that their status as government servants could not be unilaterally changed at the will of the Defendant/Applicants/Appellants, that the letter of appointment issued by the Appellants was liable to be set aside, r that they are entitled to get salary and aHowancers at par with other government servants and that they will be entitled to claim the difference of salary for the period from 2.7.1987 to 23.6.1995. It appears that, the Plaintiffs/Respondents in the said suits only claimed the above declaration and did not claim the consequential relief of recovery of difference of salary in the same suit contrary to the provisions of Order 11 Rule 2 CPC. The plea regarding non- compliance of Order 2 Rule 2 CPC taken by the Applicants/Appellants was duly incorporated in issue No.2 which reads as follows :- "2. "Whether the instant suit is hit by the provisions of Order 11 Rule 2 of the Code of Civil Procedure." 20. 17 Further, it is seen that the trial Court has not returned any finding on the above issue while disposing of the suits ex parte. The impugned orders show that two other issues along with the above issues were also not decided. While refraining from giving any decision on these three issues, the learned Court simply observed that these three issues did not crop up during the trial, since the said Defendants were proceeded ex parte. The three issues are as follows :- ISSU ES "1. Whether the claim of the plaintiff is barred by the Law of Limitation? Whether the instant suit is hit by the provisions of Order 2 Rule 2 of the Code of Civil Procedure? Whether the plaintiff was compelled to join defendant? .............,,,,,.., under the-J~ Paragraph 6 of the impugned judgments which deals with the above issues states as follows :- "The Defendants having been proceeded ex parte, these issues did not crop up during trial." 21. XIV Rule 2 It is the case of the Applicants/Appellants that Order CPC mandates Court to pronounce judgment on all the issues subject to the provisions of i_C±±e. ±±±±=r9¥±`Siion_: of sTbL|u_!±]_(2). However, in the present case, the learned Court failed to comply with the above specific provision. Thus, it is