Gauhati High Court
Tarun Gogoi vs Himanta Biswa Sarma & 5 Ors on 24 May, 2017
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
CRP(I/O) 70 OF 2017
TARUN GOGOI
FORMER CHIEF MINISTER,
ASSAM R/O STATE GUEST HOUSE,
KOINADHORA HILLS, GUWAHATI,
KAMRUP (M), ASSAM, PIN - 781022.
- Appellant/Claimant
Versus-
1. HIMANTA BISWA SARMA.
S/O LT. KAILASH NATH SARMA
R/O L.K. BARUAH ROAD, NABIN NAGAR,
GUWAHATI, KAMRUP (M), ASSAM.
2. ASSAM TRIBUNE PVT.LTD.
REP.BY SRI PRAFULLA GOBINDA BARUAH EDITOR,
"THE ASSAM TRIBUNE", TRIBUNE BUILDINGS,
MRD ROAD, CHANDMARI, GUWAHATI,
KAMRUP (M), ASSAM, PIN - 781003.
3. SRI PRAFULLA GOBINDRA BARUAH
EDITOR, "THE ASSAM TRIBUNE",
TRIBUNE BUILDINGS MRD ROAD,
CHANDMARI, GUWAHATI, KAMRUP (M),
ASSAM, PIN - 781003.
4. SRI PRASANTA J. BARUAH
EXECUTIVE EDITOR, "THE ASSAM TRIBUNE",
TRIBUNE BUILDINGS MRD ROAD,
CHANDMARI, GUWAHATI, KAMRUP (M),
ASSAM, PIN - 781003.
5. SRI KALYAN BARUAH
SPECIAL CORRESPONDENT, NEW DELHI, "THE ASSAM TRIBUNE",
TRIBUNE BUILDINGS MRD ROAD,
CHANDMARI, GUWAHATI, KAMRUP (M),
ASSAM, PIN - 781003.
6. SRI GANESH CHANDRA DAS
PRINTER AND PUBLISHER, "THE ASSAM TRIBUNE",
TRIBUNE BUILDINGS, MRD ROD,
CHANDMARI, GUWAHATI, KAMRUP (M),
ASSAM, PIN - 781003.
- Respondent/Opposite party
BEFORE
HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
Advocate for the appellant Mr. A C Buragohain
Mr. H Buragohain
CRP(I/O) 70 of 2007
Page No.2
Advocate for the respondent Mr. T J Mahanta
Ms. P Bhattacharya
Date of hearing & Judgment: 24th May, 2017
JUDGMENT AND ORDER
(ORAL)
Heard Mr. A C Buragohain, learned senior counsel assisted by Mr. H Buragohain, learned counsel appearing on behalf of the petitioner. Also heard Mr. T J Mahanta, learned senior counsel assisted by Ms. P Bhattacharya, learned counsel appearing on behalf of the respondents.
2. This revision is against the order dated 03.03.2017 passed in Misc Case No.653/2016 arising out of Title Suit No.459/2015 by the learned Civil Judge No.1, Kamrup(M), Guwahati.
3. The present petitioner is the defendant in the Title Suit No. 459/2015. The said suit was dismissed for default on 22.09.2016 as there were no steps on behalf of the respondent/plaintiff on the said date. Accordingly an application under Order 9 Rule 9 of the CPC was filed on 03.10.2016 for restoration of the said Title Suit No.459/2015.
4. The said petition was registered as Misc Case No.653/2016. It is stated in the said petition under Order 9 Rule 9 of the CPC that on 18.03.2016 the suit was fixed for filing written statement by the defendant including the present petitioner. The suit was adjourned on that date on the prayer of the counsel of the present petitioner. On 18.04.2016 the written statement was filed by the defendants. On 03.06.2016 the respondent/plaintiff filed draft issues. However, another date was fixed on 30.07.2016 for framing of issues on the prayer of the present petitioner/defendant. On 30.07.2016, the suit was again adjourned on the prayer of the petitioner/defendant and the same was fixed on 22.09.2016 for framing of issues. However, on that date, owing to none taking of steps by the plaintiff/respondent No.1, the suit was dismissed for default.
5. It was brought to the notice of the learned court below that Sri Robin Baruah, conducting counsel for the plaintiff/respondent No.1 while posting the date on 30.07.2016 in his personal diary wrongly posted the same as 30.09.2016. Accordingly, when he came to the court below on 30.09.2016, he came to know that the suit was dismissed for default on 22.09.2016. Thereafter, the said restoration petition was filed showing the cause that it was CRP(I/O) 70 of 2007 Page No.3 for the wrong posting in the diary of Mr. Robin Baruah, the conducting counsel, steps could not be taken on the said date and as such for the interest of justice, the Title Suit No.459/2015 be restored back to file.
6. The present petitioner, who is the defendant No.1 in the said Title Suit No.459/2015 filed his written objection. In the said objection, it was raised that the petition filed under Order 9 Rule 9 of the CPC was not verified as required under the provisions of Order 6 Rule 15 of the CPC. The grounds shown in the said restoration petition for non taking of steps was denied by the present petitioner/defendant No.1 on the ground that the said plaintiff/respondent No.1 is represented by 3 to 4 numbers of counsels on each date including on 30.07.2016 on which the next date for the suit was fixed on 22.09.2016. The litigant, who (plaintiff/respondent No.1) is a responsible and highly educated person and who was also a renowned advocate of the High Court cannot be allowed to take such frivolous ground in order to restore the suit by pointing towards the negligence of the counsels conducting the suit. The plaintiff/respondent No.1 cannot be termed as an innocent litigant and restore back the suit to file merely on the ground of wrong posting of the date by the counsel. Finally, it was submitted that the plaintiff/respondent No.1 was not diligent in pursuing the suit and filing the application under Order 9 Rule 9 of the CPC. So, it was prayed before the court below to dismiss the said petition.
7. Mr. Buragohain appearing on behalf of the petitioner/defendant No.1 relied the following decisions:
(a) Ajay Maken Vs. Adesh Kumar Gupta and Another reported in (2013) 3 SCC 489.
(b) Parimal Vs. Veena Alias Bharti reported in (2011) 3 SCC 545.
(c) M/s Fomento Resorts and Hotels Ltd. Vs. Gustavo Ranato Da Cruz Pinto and others reported in (1985) 2 SCC 152.
(d) Salil Dutta Vs. T.M. and M.C. Private Ltd. reported in (1993) 2 SCC 185.
(e) Meera Bora Vs. Hira Nath and Ors. Reported in 2011 (1) GLT 69.
8. Mr. Buragohain taking this Court to the verification on the body of the petition under Order 9 Rule 9 of the CPC submits that the same was verified by the counsel representing the plaintiff/respondent No.1 and the same is hit by the provisions of Order 6 Rule 15 of the CPC and as such the grounds taken in the said petition has no foundation at all. Relying (2013) 3 SCC 489, Mr. Buragohain submits that the averments made in the said petition is CRP(I/O) 70 of 2007 Page No.4 not the true reflection of the fact in issue inasmuch as the same has not come out from the pleadings made by the plaintiff/respondent No.1. Drawing reference to the decision of 2011 (1) GLT 69, Mr. Buragohain submits that if a statement of fact is not followed in accordance with law, there is no factual foundation of the case of the party in default and the same would have a determining affect bearing on the merit of his case. If a court of law takes note of a statement of fact not being verified and decides the lis, the decision would be vitiated by fundamental error affecting the merits of the case.
9. Mr. Buragohain further submits that the impugned order is hit under the provision of Order 20 Rule 5 of the CPC. It is submitted that the grounds shown for restoration which was clearly opposed by the present petitioner/defendant No.1 gave rise to various issues and the learned court below had a duty cast on it to answer each and every issue so mentioned in the pleadings of the parties to the proceeding. Having not done so, the impugned order is bad in law and liable to be set aside.
10. Mr. Mahanta, learned senior counsel submits that the facts of wrong posting in the personal diary of the counsel, Sri Robin Baruah is known to him and not to the plaintiff/respondent No.1. In such a situation the submissions made in the said application under Order 9 Rule 9 of the CPC was rightly verified by the learned counsel Mr. Robin Baruah, who is an agent under the provision of Order 3 Rule 1 of the CPC. It is also submitted that the client should not suffer owing to default on the part of the lawyer which is the settled principle under the law and under such circumstances, the learned court below has rightly passed the impugned order and there is no scope of interference at all under the revisional jurisdiction. In support of his submission, Mr. Mahanta relies Central Bank of India Vs. Asharan Begraj Rathi and Ors reported in MANU/GH/0342/2006 and submits that this Court held that no litigants would suffer for default of the lawyer, if no such default is attributed to the litigant.
11. Considered the submissions made by the learned counsels of both the parties, also perused the impugned order passed by the learned court below. While restoring back the suit, the learned court below held that instead of disposing the matter on technicalities, the parties in a suit should be allowed to contest and behind such a backdrop the learned court below accepted the grounds shown by the plaintiff/respondent No.1 to be acceptable to the court and accordingly set aside the order of dismissal dated 22.09.2016.
CRP(I/O) 70 of 2007 Page No.5
12. The submission of Mr. Buragohain with regard to the verification of the petition by the counsel appearing on behalf of the plaintiff/respondent No.1 cannot be considered to be fatal in nature. Rather it can be held that such verification by the counsel is within the parameters of the procedural rules inasmuch as the same can be done by agent of a party to a suit conversant with the facts and circumstances of the matter. It is the case of the petitioner/respondent No.1 that the suit was dismissed for default owing to non-taking of steps by the counsel, Mr. Rabin Baruah because of the fact that while posting in his personal diary it was wrongly posted as 30.09.2016 instead of 22.09.2016. It is also to be considered in syncronisation with the fact of due diligence on the part of the counsel in order to restore the suit so dismissed for default owing to non-taking of steps by the counsel. Here in this case, the suit was dismissed for default on 22.09.2016 and within ten days the petition for restoration was filed. Under such circumstances, it can be held that there was no dearth of due diligence on the part of the plaintiff/respondent No.1 and/or the learned counsel appearing on behalf of the said plaintiff/respondent No.1. Moreover, a discretion has been given to the court under the provision of Order 9 Rule 9 of the CPC to examine the sufficiency of the causes for non-taking of steps on the date of dismissal of the suit. In 2011 (3) SCC 545(supra), the term "sufficient cause" has been explained which is reproduced herein below:
"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 contest, "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" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercise discretion, it has to be exercised judiciously. (Vide Ramlal v. Rewa Coalfields Ltd., Londan Grampanchayat v. Ramgiri Gosavi, Surinder Singh Sibia v. vijay kumar Sood and Oriengal Aroma Chemical Industries Ltd. V. Gujarat Industrial Development Corporation.)"
13. From the said explanation of the term it can be concluded that ambit and scope of the said term "sufficient cause" is wide to cover any causes wherefrom no act of negligence by the party asking for the relief can be inferred. In the present case in hand, the question of lacking of due diligence does not arise at all and the fact of wrong posting in the diary is CRP(I/O) 70 of 2007 Page No.6 not at all unbelievable coupled with the act of due diligence on the part of the counsel appearing on behalf of the plaintiff/respondent No.1. In such a situation, the cause shown for non taking of steps on the date of dismissal of the suit is well within the ambit and scope of the term "sufficient cause" as stipulated under Order 9 Rule 9 of CPC.
14. The submission of Mr. Buragohain that the impugned order is bad in view of Order 20 Rule 5 of the CPC, the same cannot be accepted in a restoration petition. The court is confined only with respect to the causes shown for such non taking of steps and its satisfaction of the causes for its acceptance. The issue, accordingly, is a single issue to be decided by the court below and accordingly the learned court below has rightly decided the sole issue as to whether there was sufficient cause or causes in not taking the steps on 22.09.2016 by the plaintiff/respondent No.1 and/or the advocates being the agents of the said plaintiff/respondent No.1.
15. Accordingly, this court finds no infirmity in the impugned order and the revision petition is dismissed and disposed of.
JUDGE Rakhi CRP(I/O) 70 of 2007