A litigant should not suffer due to the negligence of their counsel, and courts must consider sufficient cause for delays with a justice-oriented approach.

JUDGMENT :

NELSON SAILO, J.

Heard Mr. C Lalfakzuala, learned counsel for the appellant and B Lalramenga, learned counsel for the respondent. By filing this appeal under Order XLIII Rule 1(t) of the Code of Civil Procedure, 1908 (CPC), the appellant seeks for setting aside the Order dated 30.10.2023 passed by the learned Addl.District Judge-II, Aizawl in CMA No. 672/2023 A/o RFA No. 5/2023 by which, the application for restoration of RFA No. 5/2023 and the connected CMA No. 160/2023 were rejected and dismissed.

[2.] Brief facts of the case is that Money Suit No. 138/2018 was filed by the instant respondent for recovery of an amount of Rs. 16,80,000/- from the instant appellant or obtaining LSC No. 102801/01/900 of 2007. The Money Suit was disposed of in favour of the respondent vide Judgment & Order dated 05.08.2020 and a Decree was passed ex-parte against the appellant. Against the same, the present appellant filed CMA No. 213/2020 under Order 9 Rule 13 CPC for setting aside the ex-parte Order and Decree dated 05.08.2020 but however, the application was rejected and dismissed vide Order dated 07.12.2021.

[3.] The appellant being aggrieved filed RFA No. 19/2022 before this Court alongwith an application for condonation of delay i.e., I.A(C) No. 80/2022. Although the delay was condoned by this Court vide Order dated 02.11.2022, the matter was remanded back for consideration by the District Judge on account of pecuniary jurisdiction. The order was passed separately in the RFA on 02.11.2022 as well.

[4.] Pursuant thereto, the appellant filed RFA No. 5/2023 alongwith CMA No. 160/2023 for condonation of delay in filing the said appeal. The Lower Appellate Court, however, refused to condone the delay and dismissed the application for condonation of delay vide Order dated 27.07.2023. In view of the rejection of the application for condonation of delay, the appeal also was dismissed as barred by limitation.

[5.] The appellant being aggrieved with the dismissal of the CMA No. 160/2023 and the RFA No. 5/2023 filed an application for re- admission/restoration of the same vide CMA No. 672/2023. However, the said application was rejected by the learned Court below vide Order dated 30.10.2023.

[6.] The appellant being aggrieved filed RSA No. 1/2024 before this Court under Section 100 CPC challenging the Order dated 27.07.2023 passed in CMA No. 160/2023 in RFA No. 5/2023.

[7.] The second appeal was taken up for consideration on 02.09.2024 and this Court after hearing the parties was of the view that it can be implied that CMA No. 672/2023 had been made under Order XLI Rule 19 CPC and it was dismissed under Order XLI Rule 11 or Rule 17 CPC. That although the appellant had the opportunity to file a second appeal on the rejection of CMA No. 160/2023 & RFA No. 5/2023, the appellant had availed the provision of Order XLI Rule 19 CPC for challenging the impugned orders dated 27.07.2023. Therefore, the Court opined that unless the appellant makes a challenge to the impugned Order dated 30.10.2023 passed in CMA No. 672/2023, the appellant cannot make a challenge to the Order dated 27.07.2023 passed in CMA No. 160/2023 & RFA No. 5/2023 since there was a clear provision to file an appeal under Order XLIII Rule 1(t) CPC. Accordingly, the second appeal was dismissed.

[8.] Pursuant to the dismissal of the second appeal with the observation that was made, the appellant has filed the instant appeal by invoking Order XLIII Rule 1(t) CPC. Mr. C Lalfakzuala, learned counsel for the appellant by referring to the Memorandum of Appeal submits that the learned Court below while passing the impugned Order dated 30.10.2023 had failed to satisfy itself and appreciate the fact that the appellant was not properly represented by his counsel in prosecuting the case before the Trial Court or before the Appellate Court. He submits that there are no materials available to show that the appellant had voluntarily absented himself or he was negligent for not appearing before the Court