Calcutta High Court (Appellete Side)
Education Welfare Charitable Trust And ... vs M/S. Art Work Expert Limited on 30 October, 2014
Author: Subrata Talukdar
Bench: Subrata Talukdar
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Justice Subrata Talukdar
CO 3383 of 2011
Education Welfare Charitable Trust and Anr.
-Vs.-
M/s. Art Work Expert Limited
For the Petitioner : Sri S.P. Mukherjee;
Sri Debanjan Mukherjee;
Ms. Debobeena Mukherjee.
For the Opposite Party : Sri Saptangshu Basu;
Sri Subhabrata Das;
Ms. Anuradha Poddar.
Heard on : 20/02/2014; 07/04/2014; 19/04/2014 &
25/04/2014
Judgement on : 30/10/2014
Subrata Talukdar, J.: In this civil revisional application challenge is
thrown to the order impugned no.372 dated 26th August, 2011 passed by
the Ld. 6th Civil Court (Senior Division) at Alipore in Misc. Case no.471 of
2010.
By the said impugned order the Ld. 6th Civil Court was pleased to
decide an application filed by the petitioner under Section 5 of the
Limitation Act, 1963 along with an application under Order 9 Rule 4
Code of Civil Procedure (CPC) praying for restoration of the suit which
was dismissed for default. The Ld. Trial Court was pleased to inter alia,
come to the finding that from the record it appears that from the report
of the death of Abhijit Ghosh who signed the plaint on behalf of the
plaintiff no.1-Company on 20th June, 2008 no substitution was carried
out on behalf of the plaintiff no.1-Company in the suit. Since 22nd
August, 2008 the plaintiff was found absent and on 26th October, 2009,
i.e. after the lapse of more than one year the suit was dismissed for
default.
The Ld. 6th Civil Court was further pleased to observe that the
application under Order 9 Rule 4 CPC has been only signed by the
representative of the plaintiff no.1- one Dilip Ghosh and Bharati Ghosh.
Neither Dilip Ghosh nor Bharati Ghosh were substituted for the plaintiff
no.1 in the original suit. However, from the facts stated in the petition
under Order 9 Rule 4 CPC it is discernible that both Dilip Ghosh and
Abhijit Ghosh were the managing trustees of the plaintiff no.1- Company
and after the death of Abhijit Ghosh, Mrs. Bharati Ghosh was appointed
as trustee in place of her husband, Abhijit Ghosh. However, the date of
appointment of Bharati Ghosh cannot be ascertained from the petition.
Considering the pleadings on the cause made out for restoration of
the suit, the Ld. 6th Civil Court was pleased to find that the petitioners
have stated that on 16th March, 2010 they were informed that the suit
was dismissed for default on 26th October, 2009 and, after the lapse of 1
1/
2 months the petition under Order 9 Rule 4 CPC was filed. Thereby the
prescribed period of limitation under Article 122 of the Limitation Act of
30 days to file for restoration of the suit was crossed.
The Ld. 6th Civil Court came to the further finding that even if it is
assumed that the suit was dismissed for default on the date of knowledge
acquired by the petitioners-plaintiffs, i.e. 16th March, 2010 and not 26th
October, 2009 even then, the application for restoration was not filed
within the period of 30 days. The Ld. 6th Civil Court also took notice of
the fact that the petition under Order 9 Rule 4 CPC is only signed by the
representatives of the plaintiff no.1 and not of the plaintiff no.2. The
Vakalatnama filed in Misc. Case no.471/2010 in connection with the
application under Order 9 Rule 4 CPC has been signed only on behalf of
the plaintiff no.1 and not on behalf of the plaintiff no.2.
The Ld. 6th Civil Court therefore came to the conclusion that the delay in
filing the restoration application has not been satisfactorily explained by
the petitioners-plaintiffs and therefore could not be condoned. The Ld. 6th
Civil Court came to the further conclusion that the petition filed in
connection with Misc. Case no.471/2010 in the absence of a
representation from the plaintiff no.2 is not maintainable in the eyes of
law.
Therefore, the Ld. 6th Civil Court was pleased to dismiss the petition
under Section 5 of the Limitation Act and hold that the petition under
Order 9 Rule 4 CPC is not maintainable.
Assailing by the said Order, Sri S.P.Mukherjee, Ld. Senior Counsel
makes the following submissions:-
i) That the petitioner is a Trust and has filed the suit being Title Suit
112 of 1981 seeking eviction against the Opposite Party (for short
OP)- defendant. Dr. Abhijit Ghosh is a joint managing trustee of
the petitioner no.1 and a partner of the petitioner no.2 and, he is
since deceased. The unfortunate death of Dr. Abhijit Ghosh
occurred on 1st April, 2008.
ii) On 5th April, 2008 through a resolution of the Trust Dr. Bharati
Ghosh and Ms. Kuheli Ghosh were inducted as partners of the
petitioner no.2 and empowered to pursue litigation, including
signing of Vakalatnama.
iii) On 26th October, 2009 T.S. 112 of 1989 (renumbered as T.S. 11 of
1985) was dismissed for default vide order no. 357. On 3rd May,
2010 the application under Order 9 Rule 4 CPC was filed and on
the same date the application under Section 5 of the Limitation Act
was filed.
iv) On the 12th September, 2011 both Ms. Bharati Ghosh and Ms.
Kuheli Ghosh wrote to the Branch Manager, Allahabad Branch,
Park Circus, requesting for issuance of a certificate to the effect
that the authorised signatory of the current account of the
plaintiff-petitioner no.2 is Smt. Bharati Ghosh. In response on 13th
September, 2011 the bank replied by stating that the current
account in respect of the petitioner-plaintiff no.2 is jointly operated
by the said Smt. Bharati Ghosh and Ms. Kuheli Ghosh.
v) Both the affidavits in connection with the application under
Section 5 of the Limitation Act and the petition under Order 9 Rule
4 CPC were affirmed by Smt. Bharati Ghosh, wife of the late Abhijit
Ghosh and she described herself as one of the petitioners and joint
managing trustee of the petitioner-plaintiff no.1. It is the specific
case of Sri Mukherjee that the application under Section 5 of the
Limitation Act although, not mandatory, has been filed and the
limitation, if at all applicable, is governed by Article 137 of the
Limitation Act. Such limitation is 3 years and admittedly the
application under Order 9 Rule 4 CPC has been filed within the
said period of 3 years. Articles 122 and 123 of the Limitation Act
shall have no application to such proceeding.
vi) Sri Mukherjee asserts that the Ld. 6th Civil Court has not
considered in detail the pleadings in the Order 9 Rule 4 CPC
application. The consideration by the Ld. 6th Civil Court is confined
to the petition under Section 5 of the Limitation Act. In the petition
under Section 5 of the Limitation Act it has been specifically
pleaded that alongwith one Ashutosh Ghosh, since deceased, Dilip
Ghosh was joint managing trustee of the petitioner-plaintiff no.1.
In the place of Ashutosh Ghosh his son, Dr. Abhijit Ghosh became
joint managing trustee alongwith Dilip Ghosh.
Upon the death of Abhijit Ghosh, Bharati Ghosh was appointed as joint
managing trustee with Dilip Ghosh. The petitioner-plaintiff no.2, is a
partnership firm and both Bharati Ghosh and Kuheli Ghosh(Mitra) are
its present partners.
vii) On the issue of the absence of signature and the absence of
designations in the Vakalatnama filed in connection with Misc.
Case 471/2010, Sri Mukherjee takes this Court to the provisions
of Order 3 Rule 4 CPC which deal with the appointment of
pleader. He points out that it is not provided under Order 3 Rule 4
CPC that the Vakalatnama duly signed by the person claiming to
be a party to the proceeding needs to bear a rubber stamp or any
stamp in support of such signature.
Relying on a judgment reported in 2006 (1) SCC 75 (paras : 15, 17 &
21) Sri Mukherjee relies on the observations of the Hon'ble Apex Court to
the effect that procedural defects/irregularities that are curable ought
not to be allowed to defeat substantive justice. The appearance of the
lawyer on behalf of the petitioner-plaintiff is enough proof of the fact that
the particular party was litigating before the Ld. 6th Civil Court.
viii) Relying on a decision of the Hon'ble Apex Court reported in
AIR 1987 SC 1353 Sri Mukherjee relies on the observation that a
liberal approach should be adopted in assessing questions of
limitation. Also relying on the decision in AIR 1981 SC 1400 Sri
Mukherjee argues that once the lawyer for the petitioners-plaintiffs
was entrusted with the task of prosecuting the litigation, it is the
lawyer who is responsible for further conduct of the same to
safeguard the interest of the client.
On the point of liberal consideration of the limitation Sri Mukherjee relies
on the decisions reported in 2000 (9) SCC 759, 1998 (7) SCC 123 &
2004 (4) SCC 119.
Countering the argument advanced on behalf of the OP before this Court
that upon death of Ashutosh Ghosh and Abhijit Ghosh, no substitution
having been carried out the suit shall be considered to have abated and
such abatement is automatic, Sri Mukherjee relies on a meaningful
reading of Section 19 (2) of the West Bengal Societies Registration Act,
1961 ( for short the 1961 Act) which provides that no suit or proceeding
shall abate for reason of any vacancy or change in so far as the holding
of the office of the President, Secretary or any office bearer of the said
society authorised under sub-section 1 of Section 19 of the 1961 Act. Sri
Mukherjee therefore submits that the petitioner-plaintiff no.1 being
admittedly a registered society under the 1961 Act, the provisions of
Section 19(2) of the said Act shall apply with full force. Therefore, death
of any one or more of the managing trustees creating a vacancy and
subsequent change in the structure of office bearers of the said society
does not lead to the inference that the suit has abated. The plaintiff-
petitioner no.1-Trust being a non-living juristic person, the question of
its legal death is an oxymoron.
Sri Mukherjee therefore submits that the Order impugned be set aside
and the suit be restored to its original file and number.
Per contra, Sri Basu, Ld. Senior Counsel has argued as follows:-
a) That although the status of the plaintiff no.1 in T.S. 112 of 1981
has been described as a registered society, the status of the
plaintiff no.2 has not been described at all.
b) Attempting to demolish the contention of Sri Mukherjee that the
society registered under the 1961 Act is a non-living juristic
person, Sri Basu relies on 2003 (8) 413 in the case of Illachi Devi
(Dead) By LRS. And Ors. Vs. Jain Society, Protection of
Orphans India and Others; (paras : 21,22 & 31) wherein the
Hon'ble Apex Court has been pleased to hold that a society
registered under the 1961 Act is not a juristic person and therefore
cannot maintain litigation, either for or against, in its name. It is
therefore strictly necessary that any litigation for and against the
society must be maintained in the names of its office bearers or
trustees following the rules and regulations of the Society.
c) From a perusal of the application under Section 5 and also the
Order 9 Rule 4 CPC petition it clearly appears that the petitioner-
plaintiff no.2 has not been properly represented. Even before this
Court there is no evidence that the petitioner-plaintiff no.2 has
been properly represented.
Relying on AIR 2001 DELHI 19 in the case of Prafulla Chandra
Bidwai Vs. AIIMS and Anr. (paras : 4 & 5) Sri Basu arguing on the
proposition that a Vakalatnama should not only have been signed by the
party but should also have been filed in Court. He points out that there
is a distinction between execution of a Vakalatnama by an Advocate and
facts germane to the identity of the parties represented in the litigation.
In the absence of a proper representation, the Ld. 6th Civil Court was
competent to hold that the application under Order 9 Rule 4 CPC was
not maintainable at all.
The plaint having been jointly filed by the plaintiffs 1 & 2 and
having regard to the specific statement in the plaint that the plaintiff
no.2 was authorised to collect service charges, the participation of the
plaintiff no.2 is indispensable to prove the plaint case as a whole since
the reliefs claimed in the plaint are joint prayers of both the plaintiffs 1 &
2.
Relying on a decision reported in AIR 1973 SC 204 in the case of
Babu Sukhram Singh Vs. Dular Singh and Ors. (para: 3), Sri Basu
makes the point that a joint claim must fail on the failure of the parties
to record the names of the legal representatives of the suit. He also relies
on the decision reported in AIR 1926 CALCUTTA 335 in the case of
Manindra Chandra Nandi Vs. Bhagabati Devi Chowdurani and Ors.
to canvas the proposition that reliefs cannot be severed and in a joint
claim separate reliefs cannot be assessed.
d) Meeting the point urged by Sri Mukherjee that laches of the lawyer
could be a ground for condoning the delay and assessing sufficient
cause for restoration, Sri Basu vehemently asserts that no written
communication is on record to indicate the regularity of
instructions by and on behalf of the petitioners-plaintiffs to their
Ld. Lawyers. The alleged defaulting lawyer is also not before Court
to defend the charge of negligence against him. Sri Basu points out
that this Court should not widely presume such negligence in the
absence of substantive material. He relies on 1997 (9) SCC 736
postulating that the ruse of filing applications such as those
presently under consideration by taking the ground of change in
advocates has been frowned upon.
Sri Basu points out the factum of death of Dr. Abhijit Ghosh on 1st April,
2008 was reported to the Ld. 6th Civil Court on 20th June, 2008 and, on
the said date the Ld. Court directed the plaintiffs-petitioners to take
steps by 22nd August, 2008. Sri Basu submits that the Ld. 6th Civil Court
indicated that appropriate application for substitution should be made.
However, in spite of such direction by the Ld. 6th Civil Court the
plaintiffs-petitioners were found to be absent till 26th October, 2009
when the suit was dismissed for default. Sri Basu strongly contends that
the suit, by such time, had abated automatically.
Relying on AIR 1960 SC 260 (para : 19) that an application confers
upon the applying party the responsibility to explain the reason for the
delay as a whole, with regard to the event of abatement of the suit on the
death of Sri Abhijit Ghosh there is no explanation forthcoming on behalf
of the petitioners-plaintiffs on such issue. In support of his
aforementioned contention Sri Basu relies on AIR 2008 CALCUTTA 175
in the case of Kolkata Municipal Corporation and Ors. Vs. M/s.
Kanak Projects Ltd. and Anr. (paras : 5,7,11) & AIR 1964 SC 21 in
the case of Union of India Vs. Ram Charan (deceased) through his
Legar Representatives, (para : 40) for the proposition that in case of
abatement neither the application under Order 9 Rule 4 CPC nor under
Section 5 of the Limitation Act is maintainable.
Sri Basu further points out that no formal order of abatement is
necessary and, as such abatement is automatic. In this connection he
relies on 2003 (10) SCC 691 in the case of Mithailal Dalsangar Singh
and Ors. Vs. Annabai Devram Kini and Ors. , (paras: 8 & 9).
Arguing that 30 days is the prescribed period for filing an application for
restoration of suit and having regard to the language of Article 122 of the
Limitation Act no other meaning can be given to the literal statutory
mandate, he submits that the order impugned suffers from no infirmity
and therefore ought to be sustained.
Heard the parties. Considered the materials on record.
At the very outset this Court notices the judgment of the Hon'ble Apex
Court reported in (2006) 1 SCC 75 in the matter of Uday Shankar
Triyar Vs. Ram Kalewar Prasad Singh (supra). At paragraphs 11, 12,
13, 14, 15, 16 & 17 the Hon'ble Court held as follows:-
"11. In Bihar State Electricity Board Vs. Bhowra Kankanee Collieries Ltd. [1984 (Supp.)
SCC 597], this Court considered a case where the Vakalatnama was not filed with the
Appeal Memo. As the defect was not removed in spite of grant of an opportunity, the High
Court dismissed the appeal as also the application for restoration. This Court, while
allowing the appeal against the said dismissal, held thus :- "6. Undoubtedly, there is
some negligence but when a substantive matter is dismissed on the ground of failure to
comply with procedural directions, there is always some element of negligence involved in
it because a vigilant litigant would not miss complying with procedural direction more so
such a simple one as filing Vakalatnama. The question is whether the degree of
negligence is so high as to bang the door of court to a suitor seeking justice. In other
words, should an investigation of facts for rendering justice be peremptorily thwarted by
some procedural lacuna ?
7. It is not for a moment suggested that a party can ignore peremptory orders of the Court
for making the appeal ready for hearing the appeal within a specified time. But having
said this, it must also be borne in mind that the procedure was devised for doing justice
and not for thwarting the same. In such a situation, civil courts have leaned in favour of
repairing the harassment, inconvenience or damage to the other side by some order of
costs. But to take the view that failure to comply with an order for filing Vakalatnama
would result in dismissal of the appeal involving a fairly good sum is to put such
procedural requirement on a pedestal tall enough to hinder the course of justice. We find it
difficult to be a party to this proposition. Hence we are inclined to interfere."
12. In Shastri Yagnapurushdasji & Ors. V. Muldas Bhundardas Vaishya & Anr. [AIR
1966 SC 1119], this Court considered a case where the Vakalatnama was in favour of 'X',
but the memorandum of appeal was signed and filed by 'Y'. This Court while holding that
the High Court was justified in permitting 'X' to sign the memorandum of appeal, in order
to remove the irregularity, observed thus : "Technically, it may be conceded that the
memorandum of appeal presented by Mr. Daundkar suffered from the infirmity that
respondent No.1 had signed his Vakalatnama in favour of the Government Pleader and
Mr. Daundkar could not have accepted it, though he was working in the Government Pleader's office as an Assistant Government Pleader. Even so, the said memo was accepted by the office of the Registrar of the Appellate Side of the High Court, because the Registry regarded the presentation of the appeal to be proper; the appeal was in due course admitted and if finally came up for hearing before the High Court. The failure of the Registry to invite the attention of the Assistant Government Pleader to the irregularity committed in the presentation of the said appeal cannot be said to be irrelevant in dealing with the validity of the contention raised by the appellants. If the Registry had returned the appeal to Mr. Daundkar as irregularly presented, the irregularity could have been immediately corrected and the Government Pleader would have signed both the memo of appeal and the Vakalatnama. It is an elementary rule of justice that no party should suffer for the mistake of the court or its office."
13. We may also usefully refer to the decision in Kodi Lal Vs. Ch. Ahmad Hasan ]AIR 1945 Oudh 200], where the legal position was stated thus : -
"The governing rule no doubt is that the counsel must be duly authorized by his client to enable him to sign the appeal or to present it on his behalf. ...... It is to be noticed that the procedure, which is laid down imposes a prohibition on the pleader to act without a valid power. It does not confer any benefit on the opponent except perhaps on the hypothesis that the actings of the counsel do not amount to acting in law. Where circumstances disclose however that the omission to file a power at the time of presentation of the appeal was accidental, it would be inequitable to visit the penalty for the omission on the litigant by insisting that his appeal must fail. Sub-rule (1) of R.4 of O.3 does not prohibit a Court from giving under S. 151, Civil P.C., retrospective validity to the act of a pleader who files a vakalatnama subsequently. ....... Ordinarily a power must be filed either antecedently or simultaneously with the acting but unless it is so enjoined or any principle of law is violated or injustice is likely to occur, a statutory rule of practice should not normally be allowed to be used as a weapon of attack. The following dictum of Bowen L.J., in (1884) 26 Ch. D. 700 may be here referred to with advantage :
"The object of Courts is to decide the rights of parties and not to punish them for mistakes which they make in the conduct of their cases by deciding otherwise than in accordance with their rights ... Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy."
If therefore there was an inadvertent technical violation of the rule in consequence of a bona fide mistake, and the mistake is subsequently remedied the defect need not necessarily be fatal."
14. In so far as the decision in Sheikh Palat (supra) relied on by the appellant-landlord, we find that the said decision is not of much assistance to the appellant as the decision itself clarifies that "it may not be necessary to file a Vakalatnama with the petition of appeal, but it is certainly necessary that there should be at the time of presentation of the appeal, a Vakalatnama in existence bearing the signature of the appellant or his attorney."
15. It is, thus, now well-settled that any defect in signing the memorandum of appeal or any defect in the authority of the person signing the memorandum of appeal, or the omission to file the vakalatnama executed by the appellant, along with the appeal, will not invalidate the memorandum of appeal, if such omission or defect is not deliberate and the signing of the Appeal memorandum or the presentation thereof before the appellate court was with the knowledge and authority of the appellant. Such omission or defect being one relatable to procedure, it can subsequently be corrected. It is the duty of the Office to verify whether the memorandum of appeal was signed by the appellant or his authorized agent or pleader holding appropriate vakalatnama. If the Office does not point out such defect and the appeal is accepted and proceeded with, it cannot be rejected at the hearing of the appeal merely by reason of such defect, without giving an opportunity to the appellant to rectify it. The requirement that the appeal should be signed by the appellant or his pleader (duly authorized by a Vakalatnama executed by the appellant) is, no doubt, mandatory. But it does not mean that non-compliance should result in automatic rejection of the appeal without an opportunity to the appellant to rectify the defect. If and when the defect is noticed or pointed out, the court should, either on an application by the appellant or suo motu, permit the appellant to rectify the defect by either signing the memorandum of appeal or by furnishing the vakalatnama. It should also be kept in view that if the pleader signing the memorandum of appeal has appeared for the party in the trial court, then he need not present a fresh Vakalatnama along with the memorandum of appeal, as the Vakalatnama in his favour filed in the trial court will be sufficient authority to sign and present the memorandum of appeal having regard to Rule 4(2) of Order 3 CPC, read with Explanation [c] thereto. In such an event, a mere memo referring to the authority given to him in the trial court may be sufficient. However, filing a fresh Vakalatnama with the memo of appeal will always be convenient to facilitate the processing of the appeal by the office.
16. An analogous provision is to be found in Order 6 Rule 14 CPC which requires that every pleading shall be signed by the party and his pleader, if any. Here again, it has always been recognized that if a plaint is not signed by the plaintiff or his duly authorized agent due to any bona fide error, the defect can be permitted to be rectified either by the trial court at any time before judgment, or even by the appellate court by permitting appropriate amendment, when such defect comes to its notice during hearing.
17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a hand-maiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well recognized exceptions to this principle are :-
i) where the Statute prescribing the procedure, also prescribes specifically the consequence of non-compliance.
ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;
iii) where the non-compliance or violation is proved to be deliberate or mischievous;
iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court.
v) in case of Memorandum of Appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant;"
This Court finds from the facts of this case that the Title Suit was filed in the year 1981. The said suit is pending for the past 33 years. From the records this Court also finds that the applications filed by the defendants under Sections 17 (2) and 17 (2A) are also pending disposal for a very long time.
This Court notices that Abhijit Ghosh, one of the trustees of the plaintiff no.1 expired in the year 2008. Prior to the expiry of Abhijit Ghosh the suit was proceeding in its usual course. Only after the death of Abhijit Ghosh, who had stepped into the shoes of Ashutosh Ghosh, erstwhile trustee, did the problems of the present nature crop up. It can be fathomed from the records that after the death of Abhijit Ghosh, one Dilip Ghosh, who was himself of advanced age, was given the responsibility of managing the affairs of the plaintiff no.1. It is found from the record that upon dismissal of the suit for default on 26th October, 2009 a meeting of the trustees of the plaintiff no. 1 was held on 8th July, 2010 wherein it was decided to take steps for restoring the suit. It is also noticed that Bharati Ghosh was the joint managing trustee of the plaintiff no. 1. The said Bharati Ghosh was also a partner of the plaintiff no. 2. It is on record that by a Power of Attorney (POA) dated 21st August, 1976 the plaintiff no. 2 was granted the authority by the plaintiff no. 1 to manage the amenities pertaining to the properties of the plaintiff no. 1.
The application for restoration of the suit filed under Order 9 Rule 4 CPC is found to be signed by both Dilip Ghosh and Bharati Ghosh acting on behalf of the trust. The application under Section 5 of the Limitation Act filed in support of the restoration application has been also affirmed by the said Bharati Ghosh.
In the considered view of this Court although the order impugned no. 372 dated 26th August, 2011 passed by the Ld. 6th Civil Court (Senior Division) declares that there is no representation on behalf of the plaintiff no.2 in the application filed under Order 9 Rule 4 CPC and none has signed on behalf of the plaintiff no. 2 and only the plaintiff no.1 is represented, the fact cannot be lost sight of that Bharati Ghosh, who is a signatory to the restoration application, is also a partner of the plaintiff no.2. The further fact cannot be also lost sight of that the plaintiff no.2 was entrusted with the responsibility of managing the amenities of the plaintiff no. 1 which, includes the tenancy of the defendant. Therefore, the authority of Bharati Ghosh to represent both the plaintiff nos. 1 & 2 in the restoration application as well as the application for condonation of delay is implied.
At this juncture this Court usefully refers to the judgment of the Hon'ble Apex Court reported in (2006) 1 SCC 75 (supra) to hold that procedural defects noticed by the Ld. Trial Court is not of a measure which would affect either the merits of the case or the jurisdiction of the Court. This Court finds that the procedural defects pointed out in the order dated 26th August, 2011 are outside the ambit of the exceptions enumerated by the Hon'ble Apex Court at Para 17 of (2006) 1 SCC 75.
This Court observes with respect the dictum of the Hon'ble Apex Court that such procedural defects and/or irregularities which can be cured should not be allowed to defeat the substantive rights of the parties or, to cause injustice. As discussed hereinabove in this judgment till the death of Abhijit Ghosh in the year 2008 when the suit has been pending for nearly 27 years since 1981, no laches were reported on the part of the plaintiffs in the conduct of the suit. Only after the death of Abhijit Ghosh in the year 2008 for the first time the peculiar situation cropped up when the suit was dismissed for default on 26th October, 2009. In this connection this Court further usefully refers to the judgment of the Hon'ble Apex Court reported in AIR 1981 SC 1400 (supra). The said judgment provides a clear explanation of the fact that in an adversarial legal system when a litigant has entrusted his lawyer to look after his interests, he should not be allowed to suffer on account of any inaction, deliberate omission or misdemeanour on the part of his Ld. Counsel. With regard to the above discussion this Court notices the fact that at Paras 3, 9, 17 & 18 of CO 3383 of 2011, as well as Para 18 of the application for restoration under Order 9 Rule 4 CPC the petitioners/plaintiffs have taken the precise point that they had entrusted their Ld. Counsel with the responsibility of taking care of the litigation. It is also specifically pleaded at Para 9 of the application under Order 9 Rule 4 CPC that only on the basis of an information slip dated 16th March, 2010 and in the absence of any assistance from their Ld. Counsel, the petitioners/plaintiffs came to learn of the dismissal of the suit on 26th October, 2009. Thereafter steps were taken to engage a new counsel pursuant to a meeting of the trustees of the plaintiff no. 1. Therefore fact that the plaintiffs have been pursuing the litigation since the year 1981 coupled with the further fact that the suit is one for ejectment by a landlord, it cannot stand to reason that after a lapse of 27 years the plaintiffs can be held to have abandoned their suit by committing wilful laches.
Admittedly upon discovery of the dismissal on 26th October, 2009 through an information slip on 16th March, 2010, the plaintiffs soon thereafter caused to be filed both the restoration application supported by an application for condonation of delay. As litigants the plaintiffs were dependent upon their Ld. Counsel to advise them correctly on the technical aspects of filing applications before the Ld. Court by appending their signatures as required along with the description of their respective designations. In the light of the ratio laid down by the Hon'ble Apex Court in AIR 1981 SC 1400 read with the principles enunciated in (2006) 1 SCC 75 it would cause grave miscarriage of justice if the doors of litigation are permanently shut on the plaintiffs at this stage.
As already noticed hereinabove in this judgment the defects in appending signatures to both the restoration application and to the application for condonation of delay must be treated to be a species of procedural non-
compliance which should not be made a tool to deny justice or perpetuate injustice. It is reiterated at this juncture that the signature of Bharati Ghosh appears in both the applications and, after the death of Abhijit Ghosh her role as his wife and joint managing trustee of the plaintiff no.1 as well as partner of the plaintiff no. 2 must be construed to represent the sum total of the interests of the plaintiffs in the suit and the applications.
On the argument advanced by Shri Basu that on the death of Abhijit Ghosh the suit must be held to have abated qua the plaintiff no. 1, this Court is persuaded to take notice of the counter argument advanced by Shri Mukherjee that under Section 19 of the Special Statute being the 1961 Act, no suit or proceeding shall abate by reason of any vacancy or change in the holder of an office of the society authorized by the governing body. Even Ld. Trial Court was of the view that the plaintiff no.1 which is registered as a society under the 1961 Act is represented in the restoration application under Order 9 Rule 4 CPC. The Ld. Trial Court was of the further view that both the restoration application and the vakalatnama are only signed on behalf of the plaintiff no.1 and not the plaintiff no.2. Finding that the plaintiff no.2 is not properly represented the Ld. Trial Court held the applications to be not maintainable. In the opinion of the Ld. Trial court such procedural non-
compliance could not be ignored.
However, this Court has already expressed its view that the role of Bharati Ghosh straddles the activities of both plaintiff no.1 and plaintiff no.2 in her respective capacities as joint managing trustee and partner.
In the absence of her designation and/or proper description supporting her signature in the applications, such absence must be treated to be a curable procedural infirmity following the judgment of the Hon'ble Apex Court in (2006) 1 SCC 75 (supra).
The operation of the judgment of the Ld. Trial court would amount to permanently non-suiting the plaintiffs from pursuing their relief of ejectment. It would amount to the proverbial example of throwing the baby out with the bath water. To paraphrase the celebrated poet Robert Frost, the Court should not "miss the wood for the trees".
Even the Ld. Trial Court was of the view that the plaint in the suit was correctly signed both on behalf of the plaintiff no.1 and the plaintiff no.
2. However, procedural infirmity crept in only at the stage of filing the applications and, such procedural infirmity ought not to be allowed to stand in the way of adjudication on the merits of the case.
In the backdrop of the above discussion the order impugned no. 372 dated 26th August, 2011 is set aside. The petitioners/plaintiffs are granted the liberty to rectify the defects in verifying and signing the applications under Order 9 Rule 4 CPC and Section 5 of the Limitation Act as well as the vakalatnama in support thereof. Upon such rectification to be carried out within 4 (four) weeks from date, the suit shall stand restored. However, the petitioners/plaintiffs shall pay costs assessed at Rs. 10, 000 (ten thousand only) to the OP/defendant within 10 (ten) days from date to claim the restoration - in default, the suit shall stand dismissed.
It is further directed that having regard to the age of the suit the Ld. Trial Court shall conclude hearing of the same along with its pending applications within a period of one year from date on its own merits and subject to its diary.
CO 3383 of 2011 is accordingly disposed of.
There will be, however, no order as to costs.
Urgent certified photocopies of this judgment, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.
(Subrata Talukdar, J.)