Calcutta High Court (Appellete Side)
Ashok Kumar Ghosh & Ors vs Fatick Ghosh & Ors on 4 December, 2013
Author: Asim Kumar Mondal
Bench: Asim Kumar Mondal
1
C.O. 2557 OF 2012
04.12.2013
Ashok Kumar Ghosh & Ors.
Vs. Fatick Ghosh & Ors.
Mr. B. R. Bhakat Mr. Aniruddha Chatterjee ... for the petitioners.
Mr. Syed Nurul Arfin ... for the opposite parties.
This is an application under Article 227 of the Constitution of India challenging the order being No. 4 dated March 30th, 2012 passed by learned Additional District Judge, Sealdah in Misc. Appeal No. 8 of 2012 affirming the order dated December 20th, 2011 passed by the learned Civil Judge (Junior Division), First Court at Sealdah in Miscellaneous case No. 59 of 2011. The petitioners are the plaintiffs. Petitioners herein filed a suit for eviction against the predecessor of the opposite parties before learned Civil Judge (Junior Division), First 2 Court at Sealdah being Title Suit No. 13 of 1992. The said suit was decreed ex-parte on March 30th, 1994.
The original defendant died on January 25th, 1995, during his lifetime no step was taken for recalling the ex-parte decree. Substituted defendants after lapse of eight years on April 20th, 2002 filed an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree which was registered as Miscellaneous case No. 32 of 2002. The said Miscellaneous Case was dismissed for default on August 19th, 2006. The opposite parties filed an application under Order 9 rule 4 of the Code of Civil Procedure read with Section 151 of the Code of Civil Procedure for recalling of the order for dismissal in Miscellaneous Case No. 32 of 2002. The said application was registered as Miscellaneous Case No. 75 of 2006 the defendants did not take any steps in the said Miscellaneous case and as such agaisn the aforesaid Miscellaneous Case being No. 75 of 2006 was dismissed for default 3 on March 17th, 2007. The opposite parties herein filed an application under Section 151 of the Code of Civil Procedure for recalling of the said order on April 17th, 2007. The learned Court below by order dated 04.08.2007 rejected the said application. The petitioner preferred a revisional application being No. C.O. 3523 of 2007 before this Court. This court by order dated April 26th, 2011 was pleased to set aside the order impugned and directed the learned Court below to hear out the application under Section 151 of the Code of Civil Procedure by treating the same as an application under Order 9 Rule 9 of Code of Civil Procedure on merit. In pursuant to t he order passed by this Court the learned Trial Court registered the said application under Section 151 of the Civil Procedure Code as Miscellaneous Case No. 59 of 2011. The learned Court below by order dated December 20th, 2011 allowed the said application.
Being aggrieved by and dissatisfied with the said order the petitioner preferred an appeal 4 before the learned Additional District Judge, Sealdah which was registered as Miscellaneous appeal No. 8 of 2011.
The learned Lower Appellate court dismissed the appeal sharing the same view of the learned Trial Court by the order impugned.
Hence this revisional application on the ground that learned Lower Appellate Court has failed to applying the proper legal test for adjudication of the application under Order 9 rule 9 of the Code of Civil Procedure. Further that learned Lower Appellate Court dismissed the appeal without assigning any reason or cause.
Mr. B. R. Bhakat with Mr. Aniruddha Chatterjee, learned advocates appear for the petitioners and submit that the learned Court below by order impugned was pleased to dismiss the appeal without giving any findings as to why the order passed by the learned Trial Court is good in the eye of law. It is submitted that learned Trial court as well as learned Lower Appellate Court did not consider the 5 background of the case as well as the conduct of the opposite parties. On time and again the opposite party failed to appear before the learned Court below without any just and proper cause. The very conduct of the opposite party is nothing but to harass the present petitioner. It is also submitted that learned Trial Court failed to appreciate the materials placed before him and also misinterpreted the findings and direction of the Hon'ble Court passed in Civil Revision No. C.O. 3523 of 2007. The learned Trial court granted leave without any reasons. The order of the learned Appellate Court is also not based on any reason. It is not impossible to prove that a person was in delayed in appearance due to traffic jam. The learned Trial Court accepted the said plea without any cogent proof or any document. Learned Counsel argued a lot about the appearance of a advocate on behalf of the opposite parties having no Vokalatnama. He also raised the question of validity and legality of such appearance and taking steps by the said lawyer without having any vokalatnama. 6
Mr. S. N. Arfin, learned Counsel appears on behalf of the opposite parties. Mr. Arfin supported the findings and the reasons basing upon which learned Trial court has passed t he order and learned Lower appellate Court has affirmed the same. It is submitted that the delay dye to traffic jam is of such a circumstance which cannot be proved by producing any evidence. Mr. Arfin also submits supporting the documents of learned Trial Court that the learned advocate could not appear in time before the Court as he was engaged in a hospital. It is also difficult to prove that he was engaged or detained in a hospital to see his ailing relatives.
Considering the submissions of learned Counsels appearing for the parties as well as carefully perused the order passed by learned Trial court vide order No. 61 dated December 20th, 2011 passed in Miscellaneous Case No. 59 of 2011 and also the order and judgement of learned Additional district Judge at Sealdah dated march 30th, 2012 passed in Miscellaneous appeal No. 8 of 2012. The order under challenge 7 passed by learned Additional District Judge is nothing but affirming the findings and reasoning of the order appealed before him. In both the lower appellate Court as well as learned Trial Court the order passed in favour of the opposite parties. The reasons assigned by learned Trial court in his order appears proper and legal. In the findings of the learned Trial Court on the facts and circumstances as narrated in the petition under Section 151 of the Civil Procedure Code which was treated a petition under Order 9 Rule 9 of the Civil Procedure Code. In view of the judgement in C.O. No. 3523 of 2007 appears correct, proper and not suffering from gross illegality. The learned Trial Court in Order No. 61 dated December 20th, 2011 has correctly observed " it is the latches, was on the part of the Advocate or his clerk or machinery that he was not present on call. In civil cases it is not obligatory on the part of the petitioner to attend in person unless called and the petitioner cannot be attributed with the entire blame." The client normally depends upon his 8 lawyer and the client should not be punished on the ground of failure and latches on the parte of his learned Advocate.
I have no hesitation to hold that the order and judgement passed by learned Lower Appellate Court in Miscellaneous appeal No. 8 of 2013 dated march 30th, 2o12 which is an order affirming the order passed by learned Trial Court does not suffer from any impropriety or irregularity. It is true that the original suit was initiated in the year 1993 the petitioner / plaintiff is pursuing the suit since 1992 and due to lapse of time and harassment already suffered, the petitioner / plaintiff is entitled to a reasonable and sufficient cost to compensate him. Thus, there is nothing in the order impugned including the order passed by the learned Trial Court to interfere by this Court. In the result the revisional application stands dismissed. Both the orders passed by learned Trial Court being No. 61 dated December 20th, 2011 in suit No. 59 of 2011 and order passed by learned Additional District Judge on March 30th, 9 2012 in Miscellaneous Appeal No. 8 of 2012 remain uninterfered subject to modification of cost of Rs. 5,000/- which is payable to the petitioner by the opposite parties within one month from the date of the communication of this order before learned Trial court. The learned Trial court shall proceed with the Miscellaneous case No. 75 of 2006 in accordance with procedure and law subject to payment of cost as directed above and learned Trial court shall conclude the hearing of the Miscellaneous Case being No. 75 of 2006 within a month after payment of cost without allowing unnecessary adjournment to either of the parties. In default of payment of cost within a stipulated time the Miscellaneous Case being No. 59 of 2011 will stand dismissed.
Urgent Photostat Certified Copy of this order if applied for be given to the parties on priority basis.
(Asim Kumar Mondal, J.)