Calcutta High Court (Appellete Side)
Corporation Bank vs David Makhal & Ors on 8 June, 2011
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
2011
C.O. 697 OF 2011
Corporation Bank
-vs-
David Makhal & Ors.
Mr. Sabyasachi Bhattacharyya,
Mr. B. Dutta
......... for the petitioner.
Heard the learned advocate for the petitioner.
Affidavit of service filed by the petitioner be kept with the record. Notice
has been returned with the remark 'not claimed'. This is treated as due service.
None appears on behalf of the opposite parties.
Accordingly, this revisional application is taken up for hearing.
This application is directed against the order No. 27 dated November 20,
2010 passed by the learned Civil Judge (Senior Division), 5th court at Alipore in
Misc. Case No. 28 of 2010, thereby dismissing the said Misc. Case.
The plaintiff/petitioner herein instituted a title suit being T.S. No. 72 of
2006 for recovery of money to the extent of Rs. 6,11,211/- only against the
opposite parties. That suit was dismissed for default and for that reason, the
petitioner filed an application under Order IX Rule 4 of the Civil Procedure Code
on May 4, 2010 and that application was converted into the Misc. Case being
Misc. Case No. 28 of 2010. The said Misc. Case was dismissed by the impugned
order holding that the petitioner did not take any step till 12.50 p.m. For that
reason, the said application was dismissed.
Having considered the submission and on going through the materials on
record, particularly the Paragraph No. 4 of the application and other paragraphs
of the application, I am of the view that the petitioner has shown sufficient cause
for non-appearance in the suit at the time of call on 20.04.2010. In disposing of
the Misc. Case under Order IX Rule 4 of the Civil Procedure code, it is expected
that the learned trial Judge should take liberal view particularly in consideration
of the claim of the plaint in the suit.
This being the position, I am of the view that the grounds as recorded by
the learned trial Judge cannot be supported. I am of the view that the petitioner
has shown sufficient ground for allowing the said Misc. Case. Accordingly, the
impugned order is hereby set aside. The Misc. Case under Order IX Rule 4 of the
Civil Procedure code stands allowed. The order of dismissal of the suit is hereby
vacated. The suit be restored to its original file and number. Now, the learned
trial Judge shall proceed with the suit in accordance with law.
Accordingly, this revisional application is disposed of.
Urgent Photostat certified copy of this order, if applied for, be given to the
learned advocate for the petitioner upon compliance of necessary formalities.
(PRASENJIT MANDAL, J.)
First Sheet
HIGH COURT AT CALCUTTA
Civil Appellate Side
CASE NO. CO/697 of 2011
In the matter of CORPORATION BANK Petitioner
versus
DAVID MAKHAL & ORS. Opposite Party
For Petitioner : BHUBANESWAR DUTTA
For Respondent :
BEFORE : Hon'ble JUSTICE PRASENJIT MANDAL ________________________________________________________________________________ Noting by Office|Serial| Date|Office Notes,orders or proceedings with signature or Advocate |no | | ________________________________________________________________________________ 08/06/11