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2000 DIGILAW 319 (CAL)

ATAB ALI MOLLA v. ARJINA BIBI

2000-07-06

BHASKAR BHATTACHARYA

body2000
BHASKAR BHATTACHARYA,J. ( 1 ) THIS revisional application under section 115 of the Code of Civil Procedure is at the instance of defendants in a suit for the partition and is directed against order dated December 22. 1997 passed by the learned Additional District judge, 6th Court, Alipore in Misc. Appeal no. 192 of 1994 thereby affirming order No. 167 dated April 21, 1994 passed by the learned Assistant District Judge, 7th Court, Alipore in Misc. Case No. 6 of 1992. ( 2 ) THE opposite parties filed a suit for partition being Title Suit No. 72 of 1978 in the learned Assistant District Judge, Alipore. The said suit was dismissed on contest. ( 3 ) BEING dissatisfied, the opposite parties preferred an appeal being Title Appeal No. 535 of 1987 which was ultimately heard by the learned Additional District Judge, 10th Court, Alipore and the learned first Appellate Court below by its order dated February 13. 1990 set aside the judgement and decree passed by the learned trial Judge and remanded the matter back to the learned trial Court for fresh decision. ( 4 ) SUBSEQUENTLY, after such remand, the learned trial Judge decreed the aforesaid suit ex-parte on April 12, 1991 as none appeared on behalf of the defendants after remand. ( 5 ) BEING dissatisfied, the present petitioners filed an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the said ex-parte decree on the ground that they were not aware of the date of hearing of the suit after such remand. The aforesaid application gave rise to Misc. Case No. 6 of 1992. The aforesaid application was contested by the opposite parties thereby opposing the prayer of the present petitioners. ( 6 ) THE learned trial Judge on consideration of the materials on record held that after the records came back from Appellate Court, the learned advocate of the petitioners on record was informed but he had endorsed on the order sheet that he had no instruction. From the aforesaid fact, the learned trial Judge concluded that it necessarily followed that the learned advocate on record did not retire form the case. The learned trial Judge thus dismissed the application under Order 9 Rule 13 of the Code of Civil Procedure. From the aforesaid fact, the learned trial Judge concluded that it necessarily followed that the learned advocate on record did not retire form the case. The learned trial Judge thus dismissed the application under Order 9 Rule 13 of the Code of Civil Procedure. ( 7 ) BEING dissatisfied, the petitioners preferred an appeal before the learned first Appellate court below and by the order impugned herein the learned first Appellate Court below has affirmed the order passed by the learned trial Judge. ( 8 ) BEING dissatisfied, the defendants have come up in revision. Mr. Munshi, the learned counsel appearing on behalf of the petitioners submitted that before the learned first Appellate Court below the learned advocate for the petitioners who was acting in the learned trial Court was changed 'and a new advocate was appointed. After the disposal of the appeal when the matter came back before the learned trial Judge, the said learned advocate on record was no longer acting as an advocate for the petitioners as a result he submitted before the Court that he had no instruction over the matter. According to Mr. Munshi, under such circumstances it was the duty of the learned trial Judge to issue fresh notice upon the petitioner or to issue a notice upon the learned advocate, who was conducting the case after taking change from the advocate on record. ( 9 ) MR. Pahari, the learned counsel appearing on behalf of the plaintiffs however has supported the orders passed by the learned Courts below and has contended that the learned first Appellate Court having allowed the appeal on contested hearing, the petitioners had all along knowledge that the matter has been remanded back to the learned trial Judge. Under such circumstances there was no necessity of giving any fresh notice upon the present petitioners. Mr. Pahari contends that it was the duty of the present petitioners to enquire in the learned trial Court whether any date was fixed after remand. Mr. Pahari in this connection relied upon two decisions, one of the Supreme court in the case of Salil Dutta v. T. M. and M. C. Private Ltd. , and the other of this Court in the case of Smt. Usha Doshi and Anr. v. Smt. Suprava Sundari. Mr. Pahari in this connection relied upon two decisions, one of the Supreme court in the case of Salil Dutta v. T. M. and M. C. Private Ltd. , and the other of this Court in the case of Smt. Usha Doshi and Anr. v. Smt. Suprava Sundari. ( 10 ) IN the case of Salil Dutta (supra), the Apex Court refused to accept non-appearance of the defendant on legal advice as a sufficient ground for setting aside ex-parte decree. In the other decision, an application was filed by the defendant for bringing the alleged insanity to the notice of the court but no particular was furnished and ultimately, an ex-parte decree was passed. The Court refused to set aside the ex-parte decree holding that it was the duty of the defendant to furnish enough materials justifying enquiry under Order 32 Rule 15 of the Code. Both the aforesaid decisions are factually different from our case and as such the principles laid down in these decisions cannot have any application to this case. ( 11 ) AFTER hearing the learned counsel for the parties and after going through the materials on record I find that in this case the learned first Appellate Court below while remanding the matter back to the learned trial Judge did not comply with the mandatory provision contained in Order 41 Rule 26a of the Code by fixing a date for appearance of the parties before the learned trial Court. I would have accepted the contention of Mr. Pahari that in this case there was no necessity of communicating date of hearing of the suit afresh if the learned first Appellate Court had complied with the aforesaid provision. Rule 26a of Order 41 fixes a responsibility upon the learned first Appellant Court to specify a date for appearance of the parties before the learned trial Court after remand. Such provision is mandatory. In this case no such direction having been given for appearance before the learned trial Court after remand, the petitioners were entitled to get a formal notice from the Court intimating a date of appearance in the suit. ( 12 ) OVER and above, in the instant case there is no dispute that the learned advocate for the petitioners who was originally conducting the case was no longer acting on their behalf, as before the Appellate Court, the said advocate was changed. ( 12 ) OVER and above, in the instant case there is no dispute that the learned advocate for the petitioners who was originally conducting the case was no longer acting on their behalf, as before the Appellate Court, the said advocate was changed. When the said learned advocate has specifically endorsed on the record that he had no instruction in the matter, it was the duty of the learned trial Judge to give notice upon the petitioners fixing a date of appearance as the provision contained in Order 41 Rule 26a of the Code was not complied with by the learned first Appellate Court below. ( 13 ) IN view of what have been stated above, in my view, there was mistake on the part of the learned Appellate Courts below in not complying with the provisions contained in Order 41 Rule 26a of the Code and similarly the learned trial Court erred in proceeding ex-parte without informing the petitioners about date of appearance or hearing of the suit particularly when the previous lawyer on record expressed "no instruction" in the matter. ( 14 ) UNDER such circumstances, in my opinion, the learned Courts below acted illegally and with material irregularity in not setting aside the ex-parte decree passed against the petitioners. ( 15 ) I, thus, set aside the orders impugned and allow the application under Order 9 Rule 13 of the Code by setting aside the ex-parte decree passed after remand. The petitioners are directed to appear before the learned trial Court positively within a month from date and the learned trial Judge is directed to dispose of the suit as expeditiously as possible and in no case beyond November, 2000 without granting any unnecessary adjournment. With the above observation, the application is allowed. In the facts and circumstances of the case there will be however no order as to costs. Revision allowed.