Calcutta High Court (Appellete Side)
(Kewala Devi Shaw & Ors vs Kali Prosad Shaw & Ors.) on 14 March, 2017
Author: Mir Dara Sheko
Bench: Mir Dara Sheko
1 14.3.2017
tg.
Sl. No.28 CO 1996 of 2016 CAN 150 of 2017 (Kewala Devi Shaw & Ors. -vs- Kali Prosad Shaw & Ors.) Mr. Ayan Banerjee Mr. Arijit Bhowmick....for the petitioners Mr. Amar Nath Das Mr. Sankar Narayan Saha ...for the opposite parties This revisional application under Article 227 of the Constitution of India has been filed assailing the order dated 2nd March, 2016 passed by the learned Judge, Small Causes Court at Sealdah in Title Suit no. 11 of 2015, by which the application under Section 151 of the Code of Civil Procedure was rejected declining to restore the suit, which was suffered by an order of dismissal for default on 7th October, 2015.
Heard Mr. Ayan Banerjee, learned advocate being assisted by Mr. Arijit Bhowmick, learned advocate for the petitioners and Mr. Amar Nath Das, learned advocate being assisted by Mr. Sankar Narayan Saha, learned advocate for the opposite parties.
Mr. Banerjee, submits that in the suit for partition there was an order of injunction which was extended from time to time on the prayer of the petitioners and as a consequence of transfer of the suit from the Court of learned Civil Judge (Senior 2 Division), Sealdah to the Small Causes Court at Sealdah, the same has gone out of notice and that was the reason for not taking steps. It is alleged that the cause list also did not reflect about said transfer of case for a considerable period. However, criticizing the impugned order it is submitted that though the application ought to have been filed within the ambit of Order 9 of the Code of Civil Procedure instead of misquoting Section 151 of the Code for restoration of the suit, the relief should have been extended. Submitted thereby, the impugned order should be set aside granting opportunity of hearing to the petitioners, who filed the suit for partition. Mr. Das submits that the suit itself is harassing in nature and although after transfer of the suit from one Court to other, the opposite parties had submitted counter-claim by supplying copy of the same to the petitioners, the petitioners, who were eight in numbers, knowing the pros and cons of the suit, have filed the application with false and frivolous plea, which was rightly turned down by learned Trial Court and the revisional application should be dismissed to save the opposite parties from further harassment.
Mr. Das also inviting attention of this Court to the series of orders submits that dilatory tactics as were adopted for getting extension of the order of temporary injunction.
This Court observed, when the instant suit was transferred from one court to other, it was also the bounden duty upon the Court to inform the parties through 3 their learned counsel on record, or, alternatively to serve notice through Court upon the parties, if the parties are not represented by the counsel. Though as an instance of knowledge of the petitioner, copy of the counter-claim was received by some one on the side of the petitioners, but the duty which was vested upon the Court, was not seen to have been discharged for which the petitioners have got opportunity to take the plea of notice about transfer of the suit. Though learned advocate for the opposite parties questioned about maintainability of the suit on the ground of so many reasons including non-inclusion of various other properties, but the same cannot be looked into within the ambit of this revisional application. Equally, the act of affirming the order impugned would mean to shut down the rights of the petitioners from proceeding of the civil suit which has been filed to establish their alleged rights which may be available, of course, after being decided by adjudication where the opposite parties also shall have the equal opportunity. But the harassment as is noticed to have been caused by chequered conduct of the petitioners due to lack of their vigilance in the matter of taking steps, they should be compensated with reasonable costs, if the impugned order cannot be sustainable. Now, examining the order impugned this Court finds that for not filing of the relevant application within the relevant provision, it was not favourably entertained, holding thereby Section 151 of the Code would not be applicable. 4 Law is set at rest that even if any provision of law is not quoted in the application seeking some relief(s), if the relief or either of the same is available under any provision of law, which may be allowed within the jurisdiction vested to the Court, the Court cannot shut its eyes but to stretch the relief(s) for not incorporation of the provision. In equal fallacy, the Court cannot decline a party but to stretch any relief available under law only because of misquoting the provision of law in the application. Therefore, the cause as shown by the petitioners over which, of course, there can be further debate and dispute, should have to be accepted restoring the suit by recalling the order of dismissal for default and compensating the harassment in lieu of reasonable cost.
In view of above observations, the revisional application, being CO 1996 of 2016, is accordingly allowed. Learned Trial Court is directed to record appropriate order for restoration of the suit by recalling order dated 7th October, 2015, subject to payment of cost assessed at Rs. 10,000/- C.P. to be deposited by the petitioners before learned Trial Court within two weeks from this date and the petitioners shall furnish copy of that receipt before the learned Trial Court and in turn learned Trial Court shall record an order allowing the contesting defendants to withdraw the said amount against proper application and identification. 5 It is made clear that if the cost as imposed is not paid, the order of dismissal of the suit for default shall remain as it is keeping only non-compliance of the opportunity.
If the issues are framed and if the parties have furnished the documents as per direction of Court, learned Trial Court shall undertake the hearing of the suit for its expeditious disposal by fixing date of hearing in every week, so that the suit along with the counter-claim, if any, can be disposed of simultaneously strictly within six months from the date of communication of this order. If the suit is not found otherwise ready for peremptory hearing that learned Trial Court shall make the same ready within six months and shall conclude hearing of the suit within a period of further six months only.
The application, being CAN 150 of 2017, is accordingly, disposed of.
The department is directed to send a copy of this order to the learned Trial Court for information and necessary action.
Urgent photostat certified copy of this order, if applied for, be furnished to the parties on priority basis.
(Mir Dara Sheko, J.) 6