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1996 DIGILAW 51 (GAU)

Arjun Prasad v. Gorakh Prasad and Ors.

1996-03-26

A.K.PATNAIK, M.SHARMA

body1996
A.K. Patnaik, J. — This is an appeal under section 48 of the Assam Frontier (Administration of Justice) Regulations, 1945, read with Civil Procedure Code, 1908, against the exparte judgment dated 3.3.93 of the Deputy Commissioner, East Siang District, Arunachal Pradesh, in TS No.5 of 1991. The brief facts for the purpose of disposal of this appeal are that the respondents filed the aforesaid TS No.5 of 1991 before the Deputy Commissioner, East Siang District, Arunachal Pradesh, (for short the Deputy Commissioner) for account of receipts and expenditures of a firm styled as M/s Chirkutram Sheonarayan in respect of Arms and Ammunitions dealership business carried on by the said firm for the period from 1984-85 till 1990-91 and for payment of their shares of the profits out of the said dealership business to Rs.4,66,666/-and for appointment of a Receiver. The Deputy Commissioner issued summons to the defendants, who are appellants in this appeal, by order dated 26.3.91. Pursuant to the said summons, the appellant-defendant No.2 appeared before the Deputy Commissioner on 29.4.91 and filed written statement disputing the claims of the plaintiff-respondents but the appellant-defendant No.1 does not appear before the Deputy Commissioner and the case was adjourned till 15.7.91 for appearance of the parties and filing of written statement. Thereafter, the case was adjourned from time to time and finally on 9.3.91, the Deputy Commissioner passed orders that as the defendants regularly defaulted in" appearance before the Court, the suit will proceed exparte and the plaintiffs were directed to be present with their witnesses to adduce evidence. Thereafter on 24.4.92, the suit was heard exparte when two witnesses were examined on behalf of the plaintiffs and the case was reserved for judgment. On 6.8.92, a petition was filed by the appellant-defendants in the said suit praying for reviewing the decision setting them exparte in the suit but the said petition was rejected by the Deputy Commissioner on the ground that the defendants were defaulting regularly in attending Court from the very beginning arid it was only after the Court had taken a decision to hear the suit exparte that the defendants had approached the Court for reviewing the exparte decision. Thereafter, the Deputy Commissioner did not deliver judgment on 24.12.92 to which it was posted but finally delivered the same on 3.3.93 decreeing an amount of Rs.4,66,666/- against the appellant-defendants as 1/3 share of the dealership business for the year 1985 to 1991 and appointed a Receiver with a direction that the Receiver shall take over the said business from the appellant-defendants immediately and thereafter run the business, render account for each year and distribute the profits amongst the plaintiffs and the defendants equally until further order. Aggrieved by the said judgment and decree of the Deputy Commissioner the two appellant-defendants have filed this appeal before this Court. 3. At the outset Mr.Banerjee, learned counsel for the appellants, submitted that the appeal was filed beyond the prescribed period of limitation and for the delay of 90 days, an application under section 5 of the Limitation Act had been filed for condonation of delay. But while admitting the appeal, the question of limitation was not decided and has been left open for decision at the time of hearing of the appeal. Mr. Banerjee relied on the averments made in the application for condonation of delay and submitted that after the judgment was pronounced by the Deputy Commissioner on 3.3.93, an application was filed on 3.3.93 by the Manager of the firm on behalf of the appellants for certified copy of the judgment and decree and the certified copy was obtained on 28.5.93 and thereafter the learned counsel for the appellant came to Guwahati on 30.5.93, prepared the appeal and took the same to Dibrugarh on 3.6.93 for being sworn by the appellants and thereafter the papers were sent back to Guwahati on 30.6.93 and finally presented before this Court on 20.7.93. The application for condonation of delay has been supported by a personal affidavit of the appellant No.2. Mr. Baruah, learned counsel for the respondents, on the otherhand, relied on the affidavit-in-opposition filed on behalf of the respondent-opposite parties denying the various averments in the application for condonation of delay and contended that the delay in filing the has not been properly explained by the appellants. 4. Mr. Baruah, learned counsel for the respondents, on the otherhand, relied on the affidavit-in-opposition filed on behalf of the respondent-opposite parties denying the various averments in the application for condonation of delay and contended that the delay in filing the has not been properly explained by the appellants. 4. Having heard the learned counsel for the parties, we are of the opinion that there is no deliberate default on the part of the appellants in filing the present appeal within the time prescribed and that sufficient cause has been shown before us in the petition under section 5 of the Limitation Act supported by affidavit as to why the appeal could not be filed within prescribed period. Accordingly, we condone the delay in filing the appeal. 5. It was next submitted by Mr. Banerjee, learned counsel for the appellants, s that the order sheet would show that on 6.8.92, a petition was filed by the appellant-defendants for setting aside the previous order of the Deputy Commissioner for hearing the suit exparte but the Deputy Commissioner without applying his mind to the grounds taken in the petition filed by the defendants on 6.8.92 rejected the same on the general grounds that the defendants had been defaulting regularly in attending the Court from the very beginning and approached the Court for reviewing the exparte decision only after the said decision was taken by him. Mr. Banian, learned counsel for the respondents, on the other hand, vehemently contended that the order sheet in TS No.5 of 1991 would show that the defendants had been defaulting in appearing before the Court on different dates and had been dragging on "the litigation without any good cause. According to Mr. Baruah therefore, the order that was passed on 6.8.92 by the Deputy Commissioner was justified on the facts of the case. Alternatively, Mr. Baruah argued that in any case against the order dated 6.8.92, an appeal was available to the appellants-defendants under section 48 of the Assam Frontier (Administration of Justice) Regulations, 1945, and yet the appellant-defendants did not prefer any appeal against the said decision of the Deputy Commissioner and the result is that the said decision dated 6.8.92 has become final and the merits of the decision dated 6.8.92 of the Deputy Commissioner cannot be agitated in this appeal. 6. We are to accept the aforesaid submissions of Mr. Baruah. 6. We are to accept the aforesaid submissions of Mr. Baruah. The provisions of sub-rule (1) of Order 43, Rule 1A, CPC which has been inserted by the legislators by way of amendment with effect from 1.2.77 is quoted herein below: "(1) Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced." A bare reading of the aforesaid sub-rule (1) of Order 43, Rule 1 A, CPC, quoted above would show that if any order is passed against a party and thereupon judgment is pronounced against that party and decree is drawn up, such party may in an appeal against such decree contend that such order should not have been made and judgment should not have been pronounced. In view of the said provisions in sub-rule (1) Order 43, Rule 1A, CPC, therefore, even where a party does not challenge an interlocutory order passed in a suit, that party can contend-before the appellate Court in an appeal against the decree subsequently passed by the trial Court that the interlocutory order should not have been passed by the trial Court. 7. Mr. Baruah however, contended that the provisions of the CPC and in particular sub-rule (1) of Order 43, Rule 1A, quoted above, would not strictly apply to the proceedings before this Court in an appeal because under section 52 of the Assam Frontier (Administration of Justice) Regulations, 1945, it was only the spirit of CPC and not its letter which would apply to a proceeding before this Court arising out of a suit. Mr. Baruah relied o/i the judgment of the Apex Court in the case of Changki Village vs. Thibunga Ao, reported in AIR 1990 SC 73 , wherein it has been held that the provisions of the CPC relating to abatement of-appeal did not apply to appeals under the paramateria provisions of Rules of Administration of Justice and Police in Naga Hills Districts, 193 7. Mr. Mr. Banarjee, on the other hand, cited the case of U. Stoling Nonglang vs. KK L. Umiang, AIR 1982 Gauhati 82, in which the learned Single Judge has held that all Rules contained in procedural laws which accord with principles of justice, equity and good conscience have to be followed by Courts governed by the Rules of Administration of Justice. 8. We are of the view that the object of the aforesaid provision of section 5 of the Assam Frontier (Administration of Justice) Regulations, 1945, is that principles of justice, equity and fairplay contained in the CPC and not in technicalities are follwed in a suit tried under the Assam Frontier (Administration of Justice) Regulations, 1945. The Apex Court while deciding the case of Changki Village (supra) held that the provisions of CPC relating to abatement of appeal did not apply to Courts governed by the Rules of Administration of Justice and Police in Naga Hills Districts, 193 7 which contained provisions similar to section 52 of the Assam Frontier (Administration of Justice) Regulations, 1945. The provisions relating to abatement of appeal, in our opinion, do not normally relate to fair play and justice but the provisions of sub-rule (1) Order 43, Rule 1 A, if not made applicable to the present case will result in substantial injustice to the appellant-defendants for the reasons that we shall now indicate. 9. The suit in the present case was for an amount of Rs.4,66,666/- by the respondent-plaintiffs against the appellant-defendants and the appellant-defendant No.2 had disputed the said claim by filing a written statement. The appellant-defendant No. 1 had, however, not filed written statement and on 6.8.92 the appellant-defendants filed an application supported by an affidavit stating therein that they had gone away in connection with a marriage ceremony of their relative and had other problems in relation to their family affairs and could not attend the Court. In the said petition it was also stated that written statement was ready for filing and if a chance was given to the defendants they would bring all the facts relating to the property in dispute before the Court. In the said petition it was also stated that written statement was ready for filing and if a chance was given to the defendants they would bring all the facts relating to the property in dispute before the Court. Instead of applying his mind to various averments made and the grounds taken in the said petition for setting aside the exparte decision, the Deputy Commissioner passed order on 6.8.92 rejecting the petition on general grounds that the defendants had been defaulting regularly in attending the Court from the very beginning. Assuming that under law, once hearing was completed and the matter was reserved for judgment the only course that was open to the Deputy Commissioner was to pronounce an exparte judgment, we are of the view that on the facts of the present case, the impugned judgment and decree dated 3.3.93 being an exparte one and for an amount of Rs.4,66,666/- the appellants could consistent with the spirit of sub-rule (1) of Order 43, Rule 1A, CPC, challenged the order dated 6.8.92 in the present appeal against the decree that was subsequently passed on the ground that they have been denied justice and fair play by the Deputy Commissioner and which such a challenge is made, the Court should set aside the decree with a view to give the appellant-defendants an opportunity to file written statements and adduce evidence in the said suit in the interest of equity, justice and fair play. 10. In the result, the appeal is allowed and the exparte judgment and decree dated 3.3.93 of the Deputy Commissioner, Siang District, Pasighat, Arunachal Pradesh, passed in TS No.5 of 1991 is set aside the appellants and the respondents are directed to appear before the Deputy Commissioner, Pasighat on 25.4.96. On the said date, the appellant-defendant No. 1 shall file his written statement and the Deputy Commissioner shall thereafter frame issues and post the case for trial and dispose of the same within a period of four months from 25.4.96. A copy of this order along with the records of TS No.5 of 1991 be sent to the Deputy Commissioner, Pasighat, forthwith.