Calcutta High Court (Appellete Side)
Atlanta Global Advisors Private ... vs Sanjib Kumar Jain & Ors on 12 October, 2023
Author: Shampa Sarkar
Bench: Shampa Sarkar
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
Hon'ble Justice Shampa Sarkar
C.O. 3819 of 2022
Atlanta Global Advisors Private Limited
Vs.
Sanjib Kumar Jain & Ors.
For the petitioner : Mr. Goutam Mitra,
Ms. Suparna Mukherjee,
Mr. Rishad Medooa,
Mr. Meghajit Mukherjee.
For the opposite parties : Mr. Naresh Balodia,
Mr. Pallav Choudhary,
Ms. Saheli Sur.
Hearing concluded on: 10.08.2023
Judgment on: 12.10.2023
Shampa Sarkar, J.:-
1. The revisional application arose out of an order dated September 15,
2022 passed in Misc. Case No.14 of 2016. The Misc. Case was an
application under Order 9 Rule 9 of the Code of Civil Procedure for
restoration of Title Suit No.15509 of 2013.
2. The order impugned has been passed by the learned Civil Judge
(Senior Division), 2nd Court at Alipore. By order dated August 14, 2015, the
suit was dismissed for default on the ground of non-appearance of the
plaintiffs. The Misc. Case was filed with a prayer for recall of the said order
of dismissal and for the restoration of the suit to its original file and
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number. The ground for restoration was negligent conduct of the learned
Advocate. The original plaintiffs filed the application for restoration.
3. Dr. Arundhati Mukherjee and Aditi Basu, as plaintiffs filed the suit
against the petitioner. The suit was for recovery of khas possession and
mesne profit. The plaintiffs did not appear in the suit. They failed to reply to
the show cause issued by the court, explaining the reason for their absence.
The suit was dismissed for default. On August 11, 2016, the original
plaintiffs filed the Misc. Case No. 14 of 2016. The defendants filed their
written objection. In the application for restoration, plaintiffs contended that
the plaintiff No.1 was an NRI and lived in the United Kingdom and the
plaintiff No.2 resided at Dehradun. It was difficult for them to conduct the
suit. They were also senior citizens. Accordingly, they had entrusted their
learned Advocate to conduct the case and the learned Advocate interacted
with them from time to time intimating them about the status of the case.
Suddenly, they stopped receiving information. They tried to contact the
learned Advocate and consequently one Mr. Chhabindra Kumar Sahu was
appointed as constituted attorney sometime in March 2016, to represent the
plaintiffs before the learned court. The constituted attorney contacted the
learned Advocate for information with regard to the status of the suit, but
did not get any reply. In the second week of July 2016, the constituted
attorney met the erstwhile Advocate and found that no steps had been taken
in the matter. Instruction was given to the learned Advocate to make an
enquiry with regard to the status of the suit. Thereafter, another learned
Advocate was engaged by the constituted attorney. The learned Advocate
took steps to obtain information about the suit on August 4, 2016 by
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searching the records. An information slip was supplied to the subsequent
learned Advocate on August 9, 2016. Upon perusal of the information slip it
was found that the suit had been dismissed on August 14, 2016. The
plaintiffs were keen to proceed with the said suit. It was prayed that the said
suit should be restored to its original file and number. It was pleaded that
there was no intentional delay in filing the application for restoration with
the specific pleading and prayer that the delay be condoned. That the
application for restoration was filed immediately upon coming to know of the
order of dismissal and unless the suit was restored by recalling an order of
dismissal, the plaintiffs would suffer irreparable loss and injury.
4. The objection to the said Misc. Case was filed by the petitioner two
years later. The petitioner/defendant specifically denied the contention of
the plaintiffs and stated that the plaintiffs had already sold the property to
a third party and did not have any subsisting right, title and interest in the
property in question. Moreover, a separate application for condonation of
delay not having been filed, the Misc. Case deserved to be dismissed.
5. The records reveal that the present opposite parties were duly
substituted in place of the vendors (original plaintiffs) in the Misc. Case and
the application for restoration was duly amended by incorporating the
opposite parties as petitioners in the Misc. Case. Such order was not
challenged by the petitioner. The Misc. Case was taken up for hearing. The
affidavit-in-chief and the cross-examination of P.W.1 (Sanjiv Kumar
Jain/opposite party No.1) have been annexed to the revisional application.
He deposed for himself and as the constituted attorney of the other opposite
parties, in the Misc. Case. Upon contested hearing, the Misc. Case was
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allowed. The learned court was of the view that from the evidence and the
pleadings, the court was satisfied that sufficient cause had been shown for
non-appearance of the plaintiffs. Whether the opposite parties (subsequent
purchasers) had first-hand knowledge with regard to the causes shown by
the erstwhile plaintiffs for not appearing on the dates the suit was fixed for
hearing, was not relevant. An enquiry of such nature would be hyper
technical. The learned court held that the suit should be decided on merits
and not on technicalities. The Misc. Case was allowed by recalling the order
dismissal of the suit dated August 14, 2015.
6. Mr. Mitra, learned Advocate appearing on behalf of the petitioner
submits that the suit was dismissed in 2015 and restored after almost seven
years. By then, the suit was a dead suit. Secondly, the subsequent
purchasers could not invoke the provisions of Order 22 Rule 10 of the Code
of Civil Procedure and proceed with the Misc. Case in place of the original
plaintiffs. Devolution of interest would take place only if the suit was
pending. Thirdly, in the deposition, the opposite party No.1 stated that the
opposite parties did not have any knowledge of the reasons for non-
appearance of the plaintiffs and consequent dismissal of the suit. According
to Mr. Mitra, the basic principle to allow an application for restoration was
that the court had to be satisfied that the plaintiffs were prevented by
sufficient cause from appearing before the court on the day the suit was
dismissed for default. That the court had to give justifiable reasons to
restore a suit after such prolonged delay, by ascertaining the truth and
veracity of the statements of the original plaintiffs. In the case in hand,
whether the erstwhile learned Advocate failed to take steps, whether a
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constituted attorney was appointed to look after the case, whether another
Advocate had been engaged to obtain information etc., were not within the
personal knowledge of the petitioners. Lack of such knowledge was also
evident from the testimony of P.W.1. The PW1 was not in a position to prove
the case of the erstwhile plaintiffs. Thus, the grounds for restoration did not
exist as the opposite parties, who purchased the property in 2017 could not
have any personal knowledge about the reasons for non-appearance of the
original plaintiffs in the suit and could not vouchsafe on behalf of the
erstwhile plaintiffs.
7. Mr. Balodia, learned Advocate appearing on behalf of the opposite
parties, submits that the learned court had already allowed the opposite
parties to pursue the proceedings on behalf of the original plaintiffs, as the
opposite parties had stepped into the shoes of the original plaintiffs. The law
provided them with the right to continue with the proceedings as they had
acquired right, title and interest in the property from the original plaintiffs.
The order by which they were substituted in the Misc. Case was not
challenged. That even if the opposite parties did not have any personal
knowledge about the failure of the erstwhile Advocate to take steps as
pleaded in the application for restoration, sufficient cause was shown. The
causes were probable causes and the Misc. Case could not be rejected on a
hyper technical ground. The order impugned was well reasoned and the
learned court had exercised his discretion in accordance with law. He
further submitted that the petitioner could not establish any substantial
injustice or prejudice that had been caused to them on account of
restoration of the suit. He submitted that due to the fault of a learned
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Advocate, a litigant could not suffer and hence the ground for restoration
taken by the plaintiffs were sufficient grounds for restoration of the suit
upon condonation of delay.
8. Referring to paragraph 13 of the Misc. Case, Mr. Balodia, submitted
that the reasons for the delay had been explained, although a separate
application for condonation of delay was not filed.
9. Considered the submissions made by the learned Advocates for the
respective parties.
10. The learned trial court, by an order dated February 29, 2020, allowed
the application dated April 24, 2018 filed by the petitioners with a prayer for
substitution in the Misc. Case No.14, 2016. The opposite parties pleaded
and relied on the provisions of Order 22 Rule 10 of the Code of Civil
Procedure. The learned court observed that the original plaintiffs had
transferred and conveyed the premises No.7 Bondel Road, First Floor, P.S.
Karaya, including the suit property on as is where is basis, on November 13,
2017. By virtue of the sale deed, the opposite parties became the owner of
the property. Hence, the said opposite parties were entitled to substitute
themselves as the plaintiffs in the Misc. Case in place of the original
plaintiffs. Accordingly, the following order was passed:-
"That the petition filed by the petitioners dated 24.04.2018 is hereby
allowed and disposed of without any order as to costs.
The name of the petitioners be substituted as per the petition
mentioned above.
Petitioners are directed to file the fresh copy of the plaint of the Misc.
Case.
On consent of both the parties the evidence of Sanjiv Kumar Jain is
taken in part and further evidence is deferred on the prayer of the
petitioners.
To 18.04.2020 for filing fresh plaint by the petitioners and further
evidence of petitioner."
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11. This court finds that within five months upon execution of the deed of
conveyance, the opposite parties approached the learned court below with a
prayer to substitute themselves in Misc. Case No.14 of 2016 and to continue
the suit. They had acquired right, title and interest in the suit property and
had stepped into the shoes of the original plaintiffs. The said application was
allowed on February 29, 2020 and on consent of both the parties the
evidence of Sanjiv Kumar Jain was taken in part and thereafter deferred.
April 18, 2020 was fixed for filing a fresh plaint (restoration application) by
the opposite parties and for further evidence of P.W.1.
12. The amended restoration application was filed by making appropriate
deletions and insertions in the cause title, prayers and the affidavit.
Thereafter, the evidence of P.W.1 continued and ultimately the Misc. Case
was decided on the records and the evidence available. The order impugned
was passed, by allowing restoration of the suit.
13. This court finds that the explanation with regard to the delay in filing
the restoration application had already been mentioned in paragraph 13 by
original plaintiffs in the Misc. Case, by the original plaintiffs. They explained
the cause for the delay in some detail. The specific ground was negligence by
the erstwhile leaned Advocate. Even if the incidents of the past were not
within the personal knowledge of opposite parties, the opposite parties had
the right to contest the suit having acquired a derivative right. They also had
the right to file a fresh suit on the self-same cause of action.
14. In my opinion, a harmonious construction of Order 22 Rule 10 and
Section 146 of the Code of Civil Procedure would justify the reason as to
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why the opposite parties were allowed to be substituted in the Misc. Case.
Moreover such order was never challenged.
15. Order 22 Rule 10 and Section 146 of the Code of Civil Procedure are
quoted below:-
"Order 22 Rule 10- Procedure in case of assignment before final
order in suit.--(1) In other cases of an assignment, creation or
devolution of any interest during the pendency of a suit, the suit
may, by leave of the Court, be continued by or against the person
to or upon whom such interest has come or devolved. (2) The
attachment of a decree pending an appeal therefrom shall be
deemed to be an interest entitling the person who procured such
attachment to the benefit of sub-rule (1)."
"146. Proceedings by or against representatives.--Save as
otherwise provided by this Code or by any law for the time being in
force, where any proceeding may be taken or application made by
or against any person then the proceeding may be taken or the
application may be made by or against any person claiming under
him."
16. Section 146 was introduced with the object of facilitating the exercise
of rights by any person upon whom the right to sue vested by devolution of
interest. The same being a beneficial provision, should be liberally
construed. For the ends of justice, the substitution of the opposite parties as
plaintiffs upon purchase of the suit property, was rightly allowed.
17. Reference is also made to the decision in Sm. Saila Bala Dassi vs
Sm. Nirmala Sundari Dassi And Anr. reported in AIR1958 SC 394.
18. The provision of Order 22 Rule 10 confers the discretion upon the
Court before whom such litigation is pending to grant leave to the person in
or upon whom such interest had come to vest or devolve, to be brought on
record. The Court has to be, prima facie, satisfied before exercising such
discretion that the property had devolved by an assignment or otherwise.
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The final question with regard to existence and validity of such deed of
assignment or devolution should be considered at the final hearing.
19. In this case, the Court had exercised discretion and had been, prima
facie, satisfied that the subsequent transferees should not only be
substituted in the suit but could also proceed with the application seeking
restoration of the suit.
20. Moreover, if the erstwhile plaintiffs had the right to continue with the
Misc. Case, the derivative right of the opposite parties to continue with the
same, should not be denied. The relief for recovery of khas possession from
the defendant and the maintainability of the suit etc., will be decided at the
final trial, as issues. The opposite parties are the beneficiaries in interest of
the erstwhile plaintiffs.
21. The test is whether the opposite parties have an enforceable right or
not. The opposite parties, having acquired the ownership of the property,
could also bring a separate suit against the defendant, without praying for
restoration of the application. The restoration of the present suit had
avoided multiplicity of proceedings.
22. Moreover, the suit is one under the Transfer of Property Act, for
recovery of khas possession upon evicting the defendant on the ground of
expiry of the period of tenancy and failure to execute a fresh tenancy
agreement at an enhanced rent. A notice under Section 106 of the Transfer
of Property Act was also issued asking the petitioner to quit and vacate the
property. With regard to the condonation of delay in filing the application for
restoration, the learned court observed that a separate application for
condonation of delay under Section 5 of the Limitation Act was not the
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mandate of law. Although, the general practice is to make a formal
application, however, there is no bar on the part of the court to exercise
discretion and condone the delay even on an oral prayer, in the absence of a
formal application.
23. In the decision of Sesh Nath Singh v. Baidyabati Sheoraphuli
Coop. Bank Ltd., reported in (2021) 7 SCC 313, the Hon'ble Apex Court
held as follows:-
"61. Section 5 of the Limitation Act, 1963 does not speak of any
application. The section enables the court to admit an application or
appeal if the applicant or the appellant, as the case may be, satisfies the
court that he had sufficient cause for not making the application and/or
preferring the appeal, within the time prescribed. Although, it is the
general practice to make a formal application under Section 5 of the
Limitation Act, 1963, in order to enable the court or tribunal to weigh the
sufficiency of the cause for the inability of the appellant applicant to
approach the court/tribunal within the time prescribed by limitation,
there is no bar to exercise by the court/tribunal of its discretion to
condone delay, in the absence of a formal application.
62. A plain reading of Section 5 of the Limitation Act makes it amply
clear that, it is not mandatory to file an application in writing before relief
can be granted under the said section. Had such an application been
mandatory, Section 5 of the Limitation Act would have expressly provided
so. Section 5 would then have read that the court might condone delay
beyond the time prescribed by limitation for filing an application or
appeal, if on consideration of the application of the appellant or the
applicant, as the case may be, for condonation of delay, the court is
satisfied that the appellant applicant had sufficient cause for not
preferring the appeal or making the application within such period.
Alternatively, a proviso or an Explanation would have been added to
Section 5, requiring the appellant or the applicant, as the case may be, to
make an application for condonation of delay. However, the court can
always insist that an application or an affidavit showing cause for the
delay be filed. No applicant or appellant can claim condonation of delay
under Section 5 of the Limitation Act as of right, without making an
application.
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100. In any case, Sections 5 and 14 of the Limitation Act are not mutually exclusive. Even in a case where Section 14 does not strictly apply, the principles of Section 14 can be invoked to grant relief to an applicant under Section 5 of the Limitation Act by purposively construing "sufficient cause". It is well settled that omission to refer to the correct 11 section of a statute does not vitiate an order. At the cost of repetition it is reiterated that delay can be condoned irrespective of whether there is any formal application, if there are sufficient materials on record disclosing sufficient cause for the delay."
24. Moreover, this court finds that in paragraph 13 of the said application, delay has been pleaded and in the entire application, reasons for delay has been sufficiently explained.
25. In the decision of Rafiq and ors. vs. Munshilal and ors. reported in AIR 1981 SC 1400, the Hon'ble Apex Court held that after engaging an Advocate, the party may remain supremely confident that the Advocate would look after his interest. Personal appearance of a party was hardly a requirement. Therefore, the party having engaged a learned Advocate who was supposed to take effective steps in the proceedings, could be re-assured that the suit would be proceeded with diligently. The plaintiffs were not required to act as watch dogs of the advocate. Hence, for the fault of an Advocate or a deliberate omission of an Advocate to represent a party to the suit, the party could not be faulted. A litigant was usually innocent in such cases and merely because he chose a learned Advocate who was not diligent, could not be a ground not to restore a proceeding. Any view, contrary to the aforementioned view, would amount to serious injustice to a litigant.
26. In the matter of Sukhinder Singh and ors. vs. Gurbuk Singh and ors. reported in MANU/DE/2014/2009, the Delhi High Court held that the parties cannot be deprived of their right emanating from a litigation due to negligence of counsel.
27. The learned court below exercised discretion upon coming to a finding that the personal knowledge of subsequent purchasers was not relevant. 12 The ground for restoration of the suit was pleaded by the original plaintiffs. The ground was non-action of the erstwhile learned Advocate. Such ground was a plausible ground for restoration of the suit.
28. Thus, for the ends of justice, the learned court deemed it fit to allow the restoration of the suit. Justice was the prime consideration. Instead of relegating the opposite parties to another suit, in order to save time and also to prevent multiplicity of proceeding, the learned court exercised discretion and allowed the subsequent purchasers of the property in question, to contest the suit by restoring the same. The maintainability of the suit will be decided at the trial. It is for the opposite parties to prove their case of recovery of khas possession.
29. The order impugned does not suffer from any perversity and does not require any interference.
30. The revisional application is dismissed.
31. There shall be no order as costs.
32. Parties are to act on the server copy of this judgment.
(Shampa Sarkar, J.) Later:-
Learned Advocate for the petitioner prays for stay. The prayer is considered and rejected.
(Shampa Sarkar, J.)