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2001 DIGILAW 25 (CAL)

Onkar Nath Pandey v. Pradip Kr. Bose

2001-01-18

Altamas Kabir, GORACHAND DE

body2001
JUDGMENT 1. This appeal is directed against order No.31 dated 26th June, 2000, passed by the 11th Addl. District Judge at Alipore in Misc. Case No.24 of 1998 arising out of an application under Order 41 Rules 17 and 19 read with section 151 C.P.C. filed by the appellant herein praying for readmission of the appeal, being No. 380 of 1997, after recalling the order of dismissal passed on 11th June,1998.By the impugned order, the learned court below dismissed the Misc. Case on contest upon holding that the application under Order 41 Rules 17 and 19 read with section151 C.P.C. was without any merit. . 2.The case made out in the said application is that Shri S.B. Pandey, the appellant's senior advocate, had all along been pursuing the appeal before the learned Court below with diligence. The appeal had been fixed for hearing on 7th April, 1998, but was adjourned at the instance of the appellant. Subsequently, Shri Pandey was out of Calcutta from 24th April, 1998, till 27th June, 1998,in connection with his personal business and family affairs and on 29th June, 1998, he for the first time came to learn from the cause list that the appeal had been dismissed on 11th June,1998. 3. The appellant examined only himself to prove the case made out in his application under Order 41 Rules 17 and19 read with section 151 C.P.C. According to him, Shri Pandey was prevented by circumstances beyond his control from being present in court on the day when the appeal was dismissed. It was also his case that he had no knowledge of the date of hearing of the appeal and that only subsequently he came to learn that Shri Pandey was out of town from 24th April, 1998 till 27th June, 1998. 4. On the other hand, Shri Dulal Bose, the father of the respondents; was examined on behalf of the respondents and it is his evidence that apart from Shri Pandey, the appellant had also engaged one Shri S.Jana to assist Shri Pandey in conducting his appeal. He also deposed that two suits were pending between the parties in the 2nd Court oflearned Civil Judge (Junior Division), Alipore, being T.S.119 of 1981 and T.S.126 of 1981, and steps were duly taken on behalf of the appellant in the said suits during the period that Shri Pandey was out of Calcutta. 5. He also deposed that two suits were pending between the parties in the 2nd Court oflearned Civil Judge (Junior Division), Alipore, being T.S.119 of 1981 and T.S.126 of 1981, and steps were duly taken on behalf of the appellant in the said suits during the period that Shri Pandey was out of Calcutta. 5. Appearing for the appellant, Mr. Sudhis Dasgupta submitted that in circumstances over which he had no control Mr.Pandey was prevented from returning to Calcutta in time to conduct the hearing of the appeal and on account thereof the appellant should not be made to suffer. 6. Mr. Dasgupta submitted that once the appellant had entrusted the conducting of the appeal to his lawyers, it was no longer necessary for him to be present when the appeal was taken up for hearing unlike an original trial where the presence of the parties is necessary. The appellant relied on Shri Pandey and Shri Jana to conduct the hearing of the appeal and it was not his responsibility to take steps in the appeal on the dates fixed as he had done in the suits before the learned Civil Judge at Alipore. 7. In support of his submission, Mr. Dasgupta referred to and relied on the decision of the Him'ble Supreme Court.in the case of Rafiq and Anr. vs. Munshilal and Anr., reported in A.I.R. 1981 S.C. page 1400, wherein an appeal disposed of in the absence of the appellant's counsel and upon rejection of the appellant's prayer for recall of the order, the Hon'ble Supreme Court set aside both the orders of dismissal on the ground that a party, who as per the existing adversary legal system had selected his advocate, briefed him and paid his fees, can remain supremely confident that his lawyer will look after his interest and such an innocent party who has done everything in his power as expected of him, should not suffer for the inaction, deliberate omission or misdemeanour of his counsel. 8. Referance was also made to another decision of the Hon'ble Supreme Court in the case of Smt. Lachi Tewari & Ors. vs. Director, Land Records & Ors., A.I.R. 1984 S. C. page 41, where similar view were expressed. 9. Mr. Dasgupta urged that the order impugned in the appeal was liable to be set aside and the Misc. Appeal was liable to be restored for disposal on merit. 10. vs. Director, Land Records & Ors., A.I.R. 1984 S. C. page 41, where similar view were expressed. 9. Mr. Dasgupta urged that the order impugned in the appeal was liable to be set aside and the Misc. Appeal was liable to be restored for disposal on merit. 10. The submissions made on behalf of the appellant were opposed by Mr.S.P. Roychowdhury appearing for the respondents. 11. Mr. Roychowdhury submitted that although an attempt had been made by the appellant to explain Shri Pandey's non-appearance on the day when the appeal was dismissed, no attempt has been made to explain why Shri Jana did not appear and take steps on the said date. Mr. Roychowdhury pointed out that the Misc. Appeal, which was fixed for hearing on 7th April, 1998, was adjourned at the instance of the appellant when Shri Pandey was available in Calcutta and the next date fixed on 11th May, 1998, must, therefore, have been within his knowledge as he left Calcutta only on 24th April, 1998. No step was however, taken on 11th May, 1998, on behalf of the appellant and the learned Court below posted the matter on 11th June, 1998, for the appellant to show cause why the appeal should not be dismissed. Even on 11th June, 1998, since no step was taken by the appellant to show cause or to seek an adjournment, the learned Court below had no option but to dismiss the appeal. 12. Mr. Royehowdhury submitted that the appellant had appeared and taken steps in the suits pending before the learned Civil Judge, (Junior Division), 2nd Court, Alipore, through Shri Jana, but chose not to do so in the Misc. Appeal before the 11th Additional District Judge at Alipore, 24 Parganas, South and allowed the same to be dismissed. 13. Mr. Royehowdhury urged that this was not a case of laehes and negligence on the part of the lawyers only, but also on the part of the appellant which did not entitle him to any relief. 14. A good deal can possibly be said of the explanation sought to be given for the absence of the appellant's learned counsel on 11th June, 1998, when the Misc. 14. A good deal can possibly be said of the explanation sought to be given for the absence of the appellant's learned counsel on 11th June, 1998, when the Misc. Appeal was dismissed, but having regard to the views expressed by the Hon'ble Supreme Court in Rafiq's case and in the ease of Smt. Lachi Tewari (supra), the benefit thereof has to be given to the appellant. 15. The appellant did all that was expected of him for the conducting of the Misc. Appeal. The appellant's responsibility was different from that of the responsibility of parties to an original trial and since his personal presence was not necessary for hearing of the appeal, the appellant cannot be faulted for not taking steps or for not being present either on 11th May, or on 11th June, 1998, when the appeal was dismissed on the appellant's failure to show cause. Following the decisions of the Hon'ble Supreme Court we set aside the order impugned in the appeal and restore the Misc. Appeal to file for hearing and disposal on merits, subject to payment of cost of 200 Gms. Such cost is to be paid within a week from date. We make it clear that the hearing of the suit may proceed notwithstanding the pendency of the Misc. Appeal. The appeal is, accordingly, allowed and disposed of as above. Appeal allowed.