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1983 DIGILAW 388 (SC)

Fallons Agency v. United Chemicals Distribution Ltd.

1983-11-01

D.A.DESAI, R.B.MISRA

body1983
ORDER : 1. Delay condoned. 2. Special leave granted. 3. The appellant was the original-defendant against whom an exparte decree was passed on January 17, 1979. The appellant for the first time came to know of the ex-parte decree some time in or about March 28, 1980. Immediately thereafter, on April 18, 1980 an application under Order 9 Rule XIII of the Code of Civil Procedure was moved on behalf of the appellant requesting the Court to set aside the ex-parte decree and restore the suit to its file and permit the appellant-defendant to participate in the suit from the stage from which it proceeded decree ex-parte. The contention put forward on behalf of the appellant for his absence on the day the suit was decreed ex-parte was that the clerk of his advocate Mr. Pranil Chandra Das had taken away the diary surreptitiously and there was no communication to him as to the date of hearing of the suit as well as to his learned advocate with the result that both remained absent when the suit was called out for hearing and the learned Judge proceeded to hear the suit ex-parte which resulted in ex-parte decree. In support of the application under Order 9 Rule XIII the appellant filed his own affidavit as well as he filed the affidavit of his learned Advocate Mr. Pranil Chandra Das, which supported the case put forward by the appellant explaining the absence of the appellant and his advocate. It may be mentioned that the respondent who was contesting the application did not examine any witness in support of his case. 4. The learned Trial Judge accepted the submission made on behalf of the appellant that he was prevented by a sufficient cause from appearing and made an order setting aside the ex-parte decree and directed that the suit be restored to file and proceeded further according to law. 5. The respondent filed Civil Revn. No. 3813 of 1980 in the High Court of Calcutta questioning the decision of the trial Court setting aside the ex-parte decree. A Division Bench of the Calcutta High Court held that the allegation that the clerk of the advocate of the present appellant took away the diary is far from convincing and the affidavit of the learned Advocate fails to explain as to when the diary was discovered. A Division Bench of the Calcutta High Court held that the allegation that the clerk of the advocate of the present appellant took away the diary is far from convincing and the affidavit of the learned Advocate fails to explain as to when the diary was discovered. The High Court also held that the appellant did not move the application for setting aside the ex-parte decree expeditiously. The High Court interfered in exercise of its revisional jurisdiction under Section 115 of the Code of Civil Procedure, and it must be confessed that the jurisdiction is quite restricted, limited ordinarily to correcting jurisdictional errors. At any rate it would not ordinarily permit interference with the finding of fact unless it is shown that the finding is so perverse that no reasonable man would even reach it. Even if two views of the facts averred are possible, the High Court cannot correct it in exercise of its revisional jurisdiction. This is too well established to support it by precedents. 6. Where the suit is decreed ex-parte and the party in default may be shown to be guilty of marginal negligence, but the Court of first instance in exercise of discretion vested in it, sets aside ex-parte decree and permits adjudication of issues on merits, the High Court should be loathe to interfere with the exercise of such discretion. And it is impermissible to substitute its discretion in place of the discretion of the Court of first instance. The Court may lean in favour of giving opportunity for adjudication of issues on merits rather than penalise for negligence by shutting the door of the Court. In this respect the trial court is comparatively better placed than High Court as the parties appear in person before it. With this advantage the trial court leaned in favour of the present appellant. In our opinion, therefore, the High Court was certainly not justified in interfering in exercise of its revisional jurisdiction with the finding recorded by the trial Court that the appellant was prevented by a sufficient cause from appearing before it and for that reason setting aside the ex-parte decree. 7. Accordingly, this appeal is allowed and the order of the High Court dated February 4, 1981 is set aside and the one dated September 22, 1980 by the trial Court is restored. 7. Accordingly, this appeal is allowed and the order of the High Court dated February 4, 1981 is set aside and the one dated September 22, 1980 by the trial Court is restored. Even if the appellant succeeds, he must pay the costs quantified at Rs. 500/- in favour of the respondent. 8. The appeal is disposed of accordingly.