Calcutta High Court (Appellete Side)
Urmila Jalan & Ors vs Tulsi Devi Rathi & Ors on 15 June, 2017
Author: Mir Dara Sheko
Bench: Mir Dara Sheko
1
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Mir Dara Sheko
C.O. 2508 of 2016
Urmila Jalan & Ors.
-Versus-
Tulsi Devi Rathi & Ors.
For the Petitioners : Mr. Sukanta Chakrabarty
Ms. Baishali Sharma
For the Opposite Parties : Mr. Jaydip Kar
Mr. Anirban Kar
Judgment on : June 15, 2017
(1) Heard Mr. Sukanta Chakrabarty, learned Advocate, being assisted by
Ms. Baishali Sharma representing the petitioners and Mr. Jaydip Kar, learned Senior
Advocate being assisted by Mr. Anirban Kar representing the opposite parties.
(2) Hearing is concluded and the case is taken up for recording the order.
(3) Mr. Chakrabarty of course by remaining within the materials on record
and with his utmost ability submitted that the learned Appeal Court wrongly
observed as follows:-
"Practically on hearing the argument of both side this Forum finds that
the execution of eviction of the appellant-defendant on the suit property
already has been made and this respondent acquired a right on the
2
property by execution during passage of time. More to say on going through entire judgment of the court below I find Ld. Court below elaborately discussed on the entire evidence of Misc Case and correctly cleared out all the loopholes of this appellant-defendant as exposed by trial of Misc Case. He correctly find out with the help of evidence of medical officer that complete bed rest was not at all suggested at his prescriptions dt. 16/9/10, 08/06/10 & 20/11/09 and this medical certificate itself showed that the appellant-defendant was not bed ridden condition as stated by him. I further find that as per Bengal Medical Act 1914 Ld. Court observed that signature of the patient as mandatory one under the certificate and authentication of it by the medical officer which was lack in the respective prescriptions of the defendant. So, on scrutiny of evidence board from the LCR I find no infirmity in the observation of court below that the petition under Order 9 Rule 13 I lacked on merit and it is nothing but a gross negligence from the part of the appellant-defendant to conduct the suit.
(4) He further submitted by relying upon a decision in the case of Bhagmal and others vs. Kunwar Lal and others, reported in (2010) 12 SCC 159 that if the delay is otherwise explained then even any separate application under Section 5 of the Limitation Act even may not be required. Mr. Chakrabarty invites the court's attention to the several prescriptions and medical certificate as were produced along with the application under Order 9 Rule 13 of the Code of Civil Procedure showing the prolonged illness of the petitioner since November 20, 2009 to January 18, 2011 3 and criticising the observations of both the learned subordinate Courts he further argued that when the Doctor, issuing certificate and prescriptions, was examined on dock then learned Courts below ought to have accepted the fact of prolonged illness as the sufficient cause for non-appearance before the learned Trial Court when the suit was called on for hearing. Of course Mr. Chakrabarty in his usual fairness apprised the Court that after passing of ex parte decree by way of execution through Court's bailiff, the possession of the premises in question was taken over by the opposite parties but the petitioner has been fighting to establish his right of contest in the suit by asserting sufficient cause supported by the medical documents. He further added that had there been any adverse antecedents, appearing on record at the instance of the petitioner those should not be looked into to disbelieve the cause as submitted in support of non-appearance on the relevant date. Mr. Chakrabarty cited some decisions, which are mentioned hereinbelow : (i) G.P. Srivastava Vs. R.K. Raizada and Others, reported in (200) 3 SCC 54 (ii) Bhagmal and others vs. Kunwar Lal and others, reported in (2010) 12 SCC 159.
(5) A copy of the application under Order 9 Rule 13 of the Code as annexed with the medical certificate and prescriptions on which the petitioner relied on is supplied since it was not annexed with the revisional application, let the same be kept with the record for future reference.
4(6) Mr. Kar per contra submitted that on two eventualities the provision under Order 9 Rule 13 of the Code of Civil Procedure can be invoked of which the first one relating to service of summons which is redundant in the facts and circumstances of the case since the petitioner after being summoned appeared in the suit and continued contest. Order 9 Rule 13 of the Code is relevant for consideration in this case whether the petitioner had sufficient cause which had prevented the petitioner or his learned Counsel to appear on the relevant date when the suit was called on for hearing. At this juncture Mr. Kar invites attention of this Court by filing certified copy from the order No. 1 to order Nos. 29 of the suit, which is also kept with the record for future reference.
(7) Mr. Kar submitted that the suit, being Title Suit No. 116 of 2004 was filed in the year 2004. The petitioner as defendant entered appearance in the suit for the first time on August 06. 2004, but on taking several adjournments filed written statement on December 19, 2008. In course of the proceeding learned Trial Court framed issues in presence of both sides on June 10, 2009 and when the suit has come up as ready for hearing, the opposite party as plaintiff filed the affidavit statement along with the documents on August 05, 2009 and the certified copy of the order No. 22 dated November 18, 2009 goes to show that both the parties before Learned Trial Court appeared lastly on November 18, 2009.
5(8) Mr. Kar submitted that when both the parties for the last time appeared before the learned Trial Court and since after that date the record was transferred to the Court of learned Civil Judge, Additional Court in the same constitution then the petitioner as well as his learned Counsel ought to have remained vigilant about that order of transfer of the suit. Criticising the ground as taken by the petitioner that notice of transfer was not served either by the petitioner or his learned Counsel cannot have any material since it would be the duty of the party and his learned Counsel to keep track about the movement of the record and relevant dates as would have been fixed.
(9) Mr. Kar relied on a decision in the case of Parimal vs. Veena @ Bharti, reported in (2011) 3 SCC 545 and argued that if the ground as stated by the petitioner comes lwithin the term "sufficient cause" as has been interpreted by the Apex Court then a question of relief may come. Mr. Kar submitted that ground as asserted in the application that is in paragraphs 5, 6 onwards the sufficient cause was not established and the reason as to why even the learned Counsel for the petitioner could not appear was not substantiated. Mr. Kar relying also upon the decision in the case of Ishwarlal Mohanlal Thakkar vs. Paschim Gujarat Vij Company Limited and Another, reported in (2014) 6 SCC 434 apprise the Court about the scope of Article 227 of the Constitution of India to make interference in the orders impugned. Mr. Kar, thus, concluded his argument by submitting that the since the cause establishing the reason 6 of non-appearance on the relevant date has not been substantiated and since learned Trial Court in details has dealt with the facts and while the Appeal Court in Misc Appeal affirmed that judgment held by the Trial Court in not allowing the suit to be restored for hearing afresh, there is no reason to interference by this Court. (10) It appears from the record that the ex parte decree in the suit was held by the transferee Court on January 07, 2011. The petitioner claims about the knowledge of such ex parte decree on February 02, 2011 after obtaining information from the Court through information slip and Misc Case under Order 9 Rule 13 of the Code was filed on February 15, 2011. Therefore the observation of the learned Appeal Court viz., "as per evidence of PW-1 under Misc Case it is also noticed that he had a knowledge of decree of eviction on 2nd February, 2011 whereas he filed the misc case on 25th July 2011" is wrong observation which has no semblance with the materials on the record. Of course we are concerned with the finality of the proceeding whether there is any scope of any interference. Mr. Chakrabarty virtually relied upon paragraph 7 from the case of G.P. Srivastava (Supra) where it was held "'sufficient cause' is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalised for his previous negligence." Of course in the same paragraph since the Supreme Court also has dealt with on and again to stretch relief under Order 9 Rule 13 of the Code provided 7 'sufficient cause' is shown for non-appearance, the relevant part of the paragraph 7 of the said judgment is quoted hereunder :-
"Under Order 9 Rule 13 CPC an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that weither the summons were not duly served upon the defendant or he was prevented by any 'sufficient cause' from appearing when the suit was called on for hearing. Unless 'sufficient cause' is shown for non- appearance of the defendant in the case on the date of hearing, the court has no power to set aside an ex parte decree. The words 'was prevented by any sufficient cause from appearing' must be liberty construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The 'sufficient cause' for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If 'sufficient cause' is made out for non-appearance of the defendant on 8 the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier."
(11) Since the Supreme Court in the aforesaid case has observed only and only about satisfaction about the sufficient cause, the meaning of the term 'sufficient cause' is well available from paragraph 13 in the case of Parimal (Supra). Paragraph 13 of the said decision is relevant to quote hereunder :-
"'Sufficient cause' is an expression which has been used in a large number of statutes. The meaning of the word 'sufficient' is 'adequate' or 'enough', inasmuch as may be necessary to answer the purpose intended. Therefore, word 'sufficient' embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, 'sufficient cause' means that the party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been 'not acting diligently'."9
(12) This Court took not that there cannot be any duty to stretch relief even on the later part of the provision laid down under Order 9 Rule 13 of the Code provided the tests to satisfy 'sufficient cause' have been fulfilled. (13) Though Mr. Chakrabarty has ventilated his grievance that no notice was served upon his client or learned Counsel defending the petitioner before the learned Trial Court about transfer of case from one court to the other court, the note of Rule 370 of the Civil Rules and Order of the High Court, Calcutta is set out hereunder :-
COMMENTS The Rule 370(2) does not impose any binding duty on the Court that in every case it must inform the parties or their lawyers about important orders passed by it. But when after remand a case is set down for hearing before the court, the court should, as a matter of prudence, inform at least the lawyers who had represented the parties in the said Court before such remand.
(14) In view of above, there is no mandatory provision that the party is required to be informed also in case of transfer of the suit/case from one Court to another Court that too in the same constitution. Rather it is the bounden duty and obligation of the petitioner and his learned Advocate to keep track on the movement of the record even if in the event of transfer of the suit/case from one Court to 10 another Court. In the instant case the suit was transferred for disposal from parent Court to the Additional Court in the same court premises. Therefore, the alibi as taken for non-service of any notice in respect of the transfer holds no water and the same cannot be cogent ground for non-appearance before the transferee Court when the suit was called on for hearing.
(15) From the copies of the order-sheets as ventilated earlier, this Court takes note that both the parties appeared before the learned parent Court for the last time on November 18, 2009. Order No. 23 dated February 01, 2010shows about the administrative order of transfer of the suit from the parent Court to the learned Civil Judge, Additional Court, Sealdah. Order No. 24 dated May 25, 2010 further goes to show that the said suit was received on transfer by the learned transferee Court on May 24, 2010 i.e., after about more than three months. Order NO. 25 dated August 07, 2010 further goes to show that on that day the opposite party filed hazira and it was fixed for hearing, meaning thereby, even after less than a few days or months the order No. 25 was recorded fixing the suit for peremptory hearing before the transferee Court. Order No. 26 dated September 17, 2010 goes to show that the opposite party did not take steps while plaintiff filed affidavit-in-chief on which day PW-1 was examined and hearing was deferred and again fixed the date of hearing on December 22, 2010 and in this process ultimately the suit was decreed ex parte on January 07, 2011 that is in the following year.11
(16) Though the petitioner has taken the ground of non-appearance in paragraphs 5, 6 onwards but actually there is no explanation whatsoever as to what prevented the learned Counsel for the petitioner to make his appearance to defend the petitioner before the learned Court although the order No. 22 dated November 18, 2009 was recorded also in his presence by presenting memo of hazira. Therefore, on that count the ailment of sufficient cause is lacking behind. (17) Now taking the ground of illness which has been dealt with in details by the learned Trial Court, this Court took note that issuance of the medical prescription and certificate of PW-2 (the Doctor) was not disbelieved but the fact of prolonged illness and acuteness which could have prevented the petitioner from either in coming to Court or from going to his learned Counsel to give instruction was disbelieved. Keeping the scope of Article 227 of the Constitution of India as once again held in the case of Iswarlal Mohanlal Thakkar (Supra) the High Court cannot exercise its power to reappreciate the evidence and record its findings on the contentious points. Paragraph 15 of the said decision is quoted below :-
"We find the judgment and award of the Labour Court will reasoned and based on facts and evidence on record. The High Court has erred in its exercise of power under Article 227 of the Constitution of India to annul the findings of the Labour Court in its award as it is well settled 12 law that the High Court cannot exercise its power under Article 277 of the Constitution as an appellate court or reappreciate evidence and record its findings on the contentious points. Only if there is a serious error of law or the findings recorded suffer from error apparent on record, can the High Court quash the order of a lower court. The Labour Court in the present case has satisfactorily exercised its original jurisdiction and properly appreciated the facts and legal evidence on record and given a well reasoned order and answered the points of dispute in favour of the appellant. The High Court had no reason to interfere with the same as the award of the Labour Court was based on sound and cogent reasoning, which has served the ends of justice."
(18) Therefore, if there is serious error in the findings held by the learned subordinate courts causing miscarriage of justice in the decision making process the High Court obviously comes in the forefront to make interference. (19) In the common parlance it is understood that in the event of having prolonged orthopaedic problem the attending Doctor in addition to making prescription to put medicine obviously would suggest for bed-rest apart from advice for x-ray. The first medical document dated November 20, 2009 though prescribed some medicines and asked for review after six months but there was no advice for 13 taking complete bed-rest. Of course no x-ray report or plate was ever placed before the learned subordinate Courts to justify the sanctity of the plea of prolonged orthopaedic problem. The other medical document dated September 16, 2010 i.e. almost after three months of issuance of first prescription where there was again advice to review after six months the advice for complete bed-rest was absent, and, that advice of complete bed-rest appeared only on the prescription dated January 20, 2011, before thirteen days of which the suit was decreed ex parte. Therefore, while learned Trial Court evaluating the oral and documentary evidence including medical papers arrived at the conclusion in not allowing to restore the suit by setting aside ex parte order, and, while again the first Appellate Court appreciating the same uphold the view of Learned trial court, this Court has no more obligation to re-evaluate again the same evidence on the basis of which the proceeding had attained finality, specially when Learned counsel for the petitioner could not show any part of findings of the Learned courts below was contrary to materials on record. Rather, once again the maxim comes as true that man may lie but document not.
(20) Apart from that, it was the plea of the petitioner that they had accrued knowledge about the ex parte decree of the suit on taking information through information slip. The copy of said information slip attached to the copy of the application be kept with the record. Now looking at the copy of the information slip attached to the copy of the application under Order 9 Rule 13 of the Code it reveals 14 that the petitioner had put number of the suit i.e Title Suit No. 116 of 2004 by incorporating also the new number of the Title Suit being 102 of 2010 since Title Suit 116 of 2004 was renumbered by the Transferee Court. Therefore, it is very hard to swallow that if the fact of transfer of the new number of the suit was not in the knowledge of the petitioner then how he had incorporated the said new number of the suit in the information slip for obtaining information about the fate of the suit. (21) Reasonably it is presumed that every details including the transfer of the suit and its renumbering were within the knowledge of the petitioner. Therefore, all the grounds by which the petitioner had attempted to get the suit restored by setting aside the ex parte decree in the eviction suit those grounds, as also held by the learned Trial Court, could not be substantiated to come within the term "sufficient cause" Rather accepting the submission of Mr. Kar that there was no due diligence on the part of the petitioner in finding contesting of the suit, rather there was altogether hide and seek game which was given exposure of willful and deliberate negligence in allowing the suit to go on ex parte. At last, though not the least, since the said ex parte decree has been satisfied by taking possession of the suit premises on executing the decree through Court's bailiff on January 31, 2011 i.e. also well before filing of the miscellaneous case, then again the pretension of having no knowledge till before February 02, 2011 cannot be accepted as sacrosanct. Therefore, there being no further need to evaluate and re-appreciate the evidence as 15 already dealt with by both subordinate courts and since this Court in the decision making process finds no perversity or illegality in coming to any otherwise conclusion, the suit would not be allowed to be restored by allowing the application under Order 9 Rule 13 of the Code of Civil Procedure. The orders passed by both the learned subordinate Courts are upheld and the revisional application being C.O. 2508 of 2016 is dismissed with exemplary cost of Rs. 10,000/- (ten thousand) only, since this Court during examination of the materials on record took note of making attempt to divert the attention of the Court by the petitioner by taking rather falsehood and vexatious grounds, and the petitioner therefore is directed to deposit such cost within one month from this day of order before the learned Trial Court with reference to the execution case which arose out of main suit failing which the opposite party may be at liberty to put also the same into execution for its realization. (22) Urgent photostat certified copy of this order, if applied for, be given to the parties, on priority basis.
( Mir Dara Sheko, J.) akb.