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2002 DIGILAW 550 (CAL)

Hari Kishan Periwal v. Somenath Ghosh

2002-08-16

P.N.Sinha, Samaresh Banerjea

body2002
JUDGMENT Samaresh Banerjea, J. The present appeal as also the application for stay arise out of a judgment and order dated May 7, 2002, passed by the Trial Court rejecting the application of the appellant under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree passed in the suit on April 11, 2001. 2. Admittedly, the application for setting aside the ex parte decree was made after thirty days of passing the ex parte decree, but in the application the prayer for condonation of delay was made explaining the reasons as to why the appellant could not make the application within thirty days. It was pleaded, inter alia, that in fact the said ex parte decree came to be known to the present appellant who is defendant No.5 in the suit, after expiry of thirty days from passing of the decree. 3. By the impugned order the learned Judge, has held that delay was not satisfactorily explained and accordingly such application is time barred. On merits also the learned Judge held that there was no sufficient cause which prevented the appellant to be present when the suit was heard ex parte. 4. The appellant who claims to be a lawful sub-tenant having been inducted by the receiver in the suit premises in his application for setting aside the ex parte decree, contended, inter alia, that he was contesting the suit by filing the written statement and took subsequent steps by filing the affidavit of documents on oath as also by taking other steps in the suit. 5. It was the case of the appellant that Mr. R. N. Ghosh, advocate, since deceased, was his advocate-on-record, from whom ultimately he took charge and engaged Mr. Somesh Panja as the advocate-on-record for conducting the case and Mr. Panja also filed his vakalatnama on September 13, 1999 in the department. It was further contended that it now transpires that when the suit was appearing for hearing before Justice Kalyan Jyoti Sengupta in the cause list of His Lordship's Court the name of the new advocate-on-record namely Mr. Somesh Panja was not appearing but the name of Mr. R. N. Ghosh, advocate, was appearing who however died in the meantime. It is contended that because of the aforesaid reasons neither himself nor his learned advocate Mr. Somesh Panja was not appearing but the name of Mr. R. N. Ghosh, advocate, was appearing who however died in the meantime. It is contended that because of the aforesaid reasons neither himself nor his learned advocate Mr. Panja was in a position to know that the matter was appearing before Justice Sengupta on, the day the suit was ultimately heard ex parte or even prior thereto. 6. It is contended that the appellant came to know about such ex parte decree only on January 10, 2002 from a copy of the notice issued by Mr. Tarit Kanti Banerjee, Advocate/receiver. It has been contended that from the said notice the appellant came to know for the first time that subsequent to the passing of the said decree Mr. Tarit Kanti Banerjee has been appointed as receiver by the Hon'ble Justice Pinaki Chandra Ghose for taking symbolical possession of the property in question from the defendant Nos. 1,3,4 & 5 in the suit. 7. It may also be recorded in this connection that although the appellant took such stand also before the trial court, namely that on the day the suit was heard ex parte and disposed of and prior thereto the name of the learned advocate Mr. Panja was not appearing in the cause list as a result whereof the learned advocate for the appellant had no way of knowing about the date of hearing of the said suit, the list of the said relevant date could not be produced by the appellant before the trial court. 8. The trial court, after recording such submission of the appellant, however, did not give much importance to the same as the trial court was of the view that subsequent to the passing of the decree, the advocate-on-record of the plaintiff made an application for' drawing up and settlement of the order and notice of the same was served upon the learned advocate for the appellant Mr. Panja who, however, did not turn up. The trial court was of the view that because of service of such notice knowledge of the learned advocate for the appellant would be necessarily attributable to the knowledge of the appellant/ defendant No.5 and since no action was taken within thirty days from the decree, the application was barred by limitation. 9. Panja who, however, did not turn up. The trial court was of the view that because of service of such notice knowledge of the learned advocate for the appellant would be necessarily attributable to the knowledge of the appellant/ defendant No.5 and since no action was taken within thirty days from the decree, the application was barred by limitation. 9. The plaintiff/respondent, in the affidavit filed before the trial court, very much emphasised on the fact that the notice of such settlement and drawing up of the decree was served upon Mr. Panja but no step was taken. Much emphasis was also laid on the alleged conduct of the appellant even prior thereto. 10. Mr. Banerjee, learned counsel for the appellant, has submitted, inter alia, that although under the rules the names of the learned advocates-on-record must be printed on the cause list, the same admittedly was not done, and therefore the learned advocate for the appellant also was engaged after taking charge from Mr. Ghosh was not aware of the matter nor was the appellant himself aware that the matter would be heard. 11. It has been submitted that in such view of the matter for mistake of the court the appellant should not be allowed to suffer. 12. Number of decisions have been referred to by Mr. Banerjee in this connection. 13. Mr. Mitra, learned counsel for the respondent/plaintiff, on the other hand has not only submitted that the date of the ex parte decree was known to the appellant previously and not on January 10, 2002, but has also drawn our attention to the aforesaid notice served upon the learned advocate-on-record of the appellant at the time of settlement of the decree. 14. Much emphasis has also been laid by him as to the alleged previous conduct of the appellant. Mr. Mitra has in fact taken great pains to take us through the relevant portion of the affidavit-in-opposition to show that even previously the appellant was not diligent. It was contended inter aila that when the matter was appearing before Justice Amitava Lala, under order of the court a registered notice was served on the respondent No.5, even then the defendant No.5, being the appellant herein, did not appear. 15. It was contended inter aila that when the matter was appearing before Justice Amitava Lala, under order of the court a registered notice was served on the respondent No.5, even then the defendant No.5, being the appellant herein, did not appear. 15. After considering the respective submissions of the parties and the entire materials on record as also the decisions cited by the parties, we are of the view that the order of the trial court cannot be sustained. 16. It cannot be disputed that under the Original Side practice rules in the cause list of the cases, the names of the advocates-on-record must be printed. Although it was sought to be contended that a case can also be identified from the number of the case and the cause title, it has been already judicially acknowledged by a Division Bench of this Court itself that it is not really from the number or cause title of the case but from the name of the advocate-on-record a case is identified by the clerks of the attorneys. It cannot be disputed also that such a practice is going on in this Court for a long time past. In such view of the matter, if the name of the advocate-on-record does not appear in the list it is undoubtedly in our view a mistake of the Court and for such mistake of the Court no party should be allowed to suffer. 17. The learned Judge, although took note of such fact, merely because the relevant cause list was not produced, did not give much importance to the same which in our view was not the correct approach at all. 18. It may be recorded before us the cause lists of the relevant dates have been produced wherefrom it appears that the name of Mr. Ghosh was appearing as the advocate-on-record for the defendant although it is also not disputed that Mr. Ghosh is no more in the land of living and Mr. Panja even before his demise took charge and filed the vakalatnama. Ghosh was appearing as the advocate-on-record for the defendant although it is also not disputed that Mr. Ghosh is no more in the land of living and Mr. Panja even before his demise took charge and filed the vakalatnama. It the case of Kanailall Shaw vs. Bhattu Shaw, reported in AIR 1961 Calcutta 474, a Division Bench of this court held as under :- "In dismissing the plaintiffs petition under Order 9 Rule 9, Ray, J., has not delivered any judgment and that is why elaborate arguments have been advanced before us upon the affidavits filed by the plaintiff and the defendant. Upon the affidavits the points that emerge for consideration are two: (i) whether there was sufficient cause for the non-appearance of the plaintiff on November 18, 1959 and (2) whether the plaintiffs application is barred by limitation. On the first question, the fact that the name of the plaintiffs attorney was wrongly printed in the Peremptory List of November 18, 1959, is not disputed. We have also sent for the Peremptory Cause List of that date and from the entries in the Cause List it appears that the name of the plaintiffs attorney was wrongly printed as S. M. Chowdhury' whereas it should have been printed as S. M. Chatterjee'. This fact in my opinion is sufficient to indicate that the plaintiffs attorney was misled by the misprint of his name. We are told that at the time of examining the Peremptory Cause List the attorneys and their clerks generally do not remember the number of the suit or the names of the litigants, but they mark only those suits in which the names of the attorneys appear. As a result of the fact that the name of the plaintiffs attorney was not correctly printed, it is reasonable to hold that he was misled and this may amount to a sufficient cause within the meaning of Order 9 Rule 9 of the Code of Civil Procedure." 19. As a result of the fact that the name of the plaintiffs attorney was not correctly printed, it is reasonable to hold that he was misled and this may amount to a sufficient cause within the meaning of Order 9 Rule 9 of the Code of Civil Procedure." 19. Thus it will appear from the aforesaid observations of Their Lordships that as in the cause list in respect of the aforesaid case, the name of the plaintiffs attorney was wrongly printed as S. M. Chowdhury whereas it should have been printed as S. M. Chatterjee; Their Lordships were of the view that because of such facts alone it would be reasonable to hold that the plaintiffs attorney was misled by such act. 20. In the instant case, it is worse, because the name of an advocate was printed who is dead and the name of the advocate-on-record who even before the death of Mr. Ghosh filed vakalatnama was not recorded. 21. Mr. Banerjee has also relied on the following decisions:- In the case of Smt. Lachi Tewari & Ors. vs. Director of Land Records & Ors., reported in AIR 1984 SC 41 , in the case of Malkiat Singh vs. Joginder Singh, reported in AIR 1998 SC 258 , in the case of Rafiq & Anr. vs. Munshilal & Anr., reported in AIR 1981 SC 1400 , in the case of Tahil Ram Issardas Sadarangani & Ors. vs. Ramchand lssardas Sadarangani & Anr., reported in AIR 1993 SC 1182 and in the case of Ranipet Chemicals & Engineering Co. Put. Ltd. vs. Swastik Stainless Steel Stores, reported in AIR 1986 Cal 76 (Division Bench). 22. The other Division Bench judgment of our High Court reported in AIR 1986 Calcutta page 76 was relied upon for the aforesaid proposition namely wrong printing of the name of the advocate-on-record in the cause list can be construed as sufficient cause, within the meaning of Order 9 Rule 13 of the Code of Civil Procedure. The various decisions of the Supreme Court were relied upon mainly for substantiating his contention that in the ultimate analysis it was really because of the aforesaid reasons the learned advocate was not aware about the fixing of date of hearing of the matter and, therefore, because of default on the part of the learned advocate the appellant should not suffer. 23. 23. It appears to us that such argument was also advanced before the trial court but trial court distinguished the decision of the Supreme Court reported in AIR 1998 SC 258 by contending that it was not even stated by the appellant in his application for setting aside the ex parte decree the date of his knowledge of the decree. 24. It however appears to us that the learned Judge overlooked that in that application a specific case was made out that on 10.1.2002 the appellant came to know from the aforesaid notice of the learned receiver for the first time on 10th of January about the decree and thereafter the application was made. Although there was delay in filing the application, in our view such delay is certainly is liable to be condoned as the appellant was prevented by sufficient cause for not being able to make the application for setting aside the ex parte decree within the prescribed period of limitation namely, i. e. within 30 days from the date of the decree, as he came to know about the said decree for the first time on 10th January, 2002. 25. In fact, under the facts and circumstances of the case the reason for inability of the appellant for being present when the matter was taken up for hearing ex parte and inability to make the application for setting aside the decree within 30 days from the date of the ex parte decree are the same namely, ignorance of the said date because of such wrong printing of the name of the advocate-on-record and coming to know of such ex parte decree for the first time on 10.1. 2002. 26. Mr. Mitra has stressed on the point which found favour of the trial court that the notice for settlement and drawing up of the decree was served upon the advocate-on-record for the appellant Mr. Panja and Mr. Panja did not appear. It is submitted that since the appellant did have notice of the ex parte decree though such notice be and, should have come up immediately with the application which he did not do. Although this argument of Mr. Mitra has found favour of the trial court, we are unable to accept such contention. Panja and Mr. Panja did not appear. It is submitted that since the appellant did have notice of the ex parte decree though such notice be and, should have come up immediately with the application which he did not do. Although this argument of Mr. Mitra has found favour of the trial court, we are unable to accept such contention. As pointed out hereinbefore, if the date of hearing was unknown to the advocate-on-record in view of a clear and glaring mistake on the part of the court, in our view even if subsequently the advocate-on-record might have come to know about such ex parte decree from the said notice, even then appellant cannot be made to suffer when the mistake primarily was of the court. We are also unable to accept the knowledge of the lawyer necessarily will be attributable to the client. 27. That should be, but it may not happen also. No evidence before the court was there that the learned advocate did inform the appellant immediately. The appellant in fact in the affidavit-in-reply before the trial court stated that the appellant was not informed and it is also not disputed admittedly the advocate-on-record did not appear. 28. If such notice was received by the advocate-on-record, Mr. Panja and yet he did not appear, the same amounts to the lapses on the part of the said learned advocate for which, in our view, no question of penalising the appellant arises particularly when the court committed such mistake which created all the problems. 29. Large number of decisions have also been relied upon by Mr. Mitra for the purpose of contending that, it will appear from the conduct of the appellant, this application was really mala fide. Reliance has been placed on the following decisions:- In the case of Ram Lal & Ors. vs. Rewa Coalfields Ltd., reported in AIR 1962 SC 361 , in the case of Vijakumar Durgaprasad Gajbi & Ors. Mitra for the purpose of contending that, it will appear from the conduct of the appellant, this application was really mala fide. Reliance has been placed on the following decisions:- In the case of Ram Lal & Ors. vs. Rewa Coalfields Ltd., reported in AIR 1962 SC 361 , in the case of Vijakumar Durgaprasad Gajbi & Ors. vs. Kamlabai & Ors., reported in (1995) 6 SCC 148 , in the case of N. Balakrishnan vs. M. Krishnamurthy, reported in AIR 1998 SC 3222 , in the case of Binod Bihari Singh vs. Union of India, reported in AIR 1993 SC 1245 , in the case of Gertred Chanda vs. Havitat Developers Pvt. Ltd. (the judgment of Division Bench of our High Court), reported in 1998 CWN 298, in the case of Beharilal Shaw vs. Surendra Singh, reported in 1992 CWN 595, in the case of Rajabhai Abdul Rehman Munshi vs. Vasudev Dhanjibhai Mody, reported in AIR 1984 SC 345 and in the case of M/s. Nanalal M. Varma & Co. [Gunnies] P. Ltd. vs. Gordhandas Jerambhai & Ors., reported in AIR 1965 SC 547. 30. Some of the decisions related to condonation of delay under section 5 and some other decisions related to setting aside the ex parte decree; but the some and substance of the aforesaid decisions of the Supreme Court is that under the facts and circumstances of the case Supreme Court sometimes declined to set aside the ex parte decree or condone the delay as it was found the application was mala fide and there was no bona fide on the part of the applicant. 31. In our view the ratio of such decisions are not applicable in the facts and circumstances of the present case as we have not found anything mala fide on the part of the appellant. 32. If court commits a mistake and the name of the advocate-on-record is not printed and defence is taken because of such mistake of the court that a party was not aware of the hearing of the case, in our view such stand can not be said by any stretch of imagination to be mala fide, under the facts and circumstances of this case. 33. The judgment of the learned single Judge of this court relied upon by Mr. 33. The judgment of the learned single Judge of this court relied upon by Mr. Mitra relates to the question whether in case of a default on the part of the learned advocate, the court has any option in the matter. It was held by Justice S. K. Mukherjee that even if a case is made as to the latches of the learned advocate it is open to the court to examine whether there was default on the part of the client himself. There cannot be any dispute regarding such proposition of law. 34. But we have already found that under the facts and circumstances of the case there has been no default on the part of the appellant. 35. Lastly, much has been submitted by Mr. Mitra as to the previous conduct of the appellant. It is submitted that such previous conduct should be taken into consideration for the purpose of consideration of the application for setting aside the ex parte decree. 36. The Supreme Court however in its recent decision in the case of G. P. Srivastava vs. R. K. Raizada & Ors., reported in (2000) 3 SCC 54 , where the Supreme Court dealt with an application under Order 9 Rule 13 of the Code of Civil Procedure, held that even where the defendant is found to be negligent, the other side may be compensated by cost; in setting aside the ex parte decree narrow and technical approach of court leads to unnecessary prolonging of the litigation. 37. It was further held while setting aside ex parte decree 'sufficient cause' for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte. It was also further held that the words "was prevented by sufficient cause from appearing" must be liberally construed to enable the court to do complete justice between the parties. In this connection the relevant paragraph of the said judgment is quoted hereunder:- "Under Order 9 Rule 13 CPC an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any 'sufficient cause' from appearing when the suit was called on for hearing. Unless 'sufficient cause' is shown for non-appearance of the defendant in the case on the date of hearing, the court has no power to set aside an ex parte decree. The words 'was prevented by any sufficient cause from appearing' must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The 'sufficient cause' for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If 'sufficient cause' is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approached the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not, mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits." 38. The same view has been expressed by the Supreme Court while interpreting sufficient cause in the matter of granting adjournment in the case of State Bank of India vs. Chandra Govindji, reported in (2000) 8 SCC 532 . The Supreme Court held thus:- "In ascertaining whether a party had reasonable opportunity to put forward his case or not, one should not ordinarily go beyond the date on which adjournment is sought for. The earlier adjournment, if any, granted would certainly be for reasonable grounds and that aspect need not be once again examined if on the date on which adjournment is sought for the party concerned has a reasonable ground. The mere fact that in the past adjournments had been sought for would not be of any materiality. It the adjournment had been sought for on flimsy ground the same would have been rejected. The mere fact that in the past adjournments had been sought for would not be of any materiality. It the adjournment had been sought for on flimsy ground the same would have been rejected. Therefore, in our view, the High Court as well as the learned District Judge and the Rent Controller have all missed the essence of the matter". 39. In view of the aforesaid latest view of the Supreme Court in the matter of considering the question whether the decree which was passed ex parte should be set aside or not, and whether the defendant No.5, being the appellant herein was prevented by sufficient cause, the court is therefore called upon to consider his conduct on the aforesaid date when the matter was heard ex parte and not prior thereto. 40. For the reasons stated above, we are of the view that the appellant was prevented by sufficient cause for not being able to be present when the suit was decreed ex parte and he was also prevented by sufficient cause from for not being able to apply for setting aside the ex parte decree within the prescribed period of limitation. 41. For the reasons stated above, the present appeal succeeds. The impugned judgment and order of the trial court is hereby set aside. 42. The delay in preferring the application for setting aside of the ex parte decree is condoned and the same is also allowed on merits. 43. For the reasons stated above, the ex parte decree dated 11.4.2002 passed in Suit No. 566 of 1985 of this court is hereby set aside. 44. It may be recorded that although we have allowed the application, we are not awarding any cost in favour of the defendant in view of the fact we have already held that the sufference of the parties was really because of the mistake of the court in not printing the name of the advocate-on-record in the peremptory cause list. 45. At this stage after delivery of judgment Mr. Mitra, learned counsel for the plaintiff-respondent submits that since application of the defendant No.5 for setting aside the ex parte decree has been allowed the entire decree should not be set aside and it may be set aside only so far as the defendant No.5 is concerned. 46. 45. At this stage after delivery of judgment Mr. Mitra, learned counsel for the plaintiff-respondent submits that since application of the defendant No.5 for setting aside the ex parte decree has been allowed the entire decree should not be set aside and it may be set aside only so far as the defendant No.5 is concerned. 46. In view of the nature of the decree passed in the suit we are, however, of the view that under the facts and circumstances of the case it will be necessary to hear the parties further on this point namely, whether the decree is divisible and whether the enteire decree or only the decree so far as it relates to the defendant No.5, is to be set aside. 47. Let the matter again appear on Monday at 2 p.m. as 'For Orders'. 48. By our judgment and order dated 7th August, 2002 we allowed the application for setting aside the ex parte decree. 49. At that stage on the submission of the learned counsel appearing for the landlord/respondent we directed the matter again to come up today to consider the submission of the landlord/respondent that the decree is divisible and therefore when the application of the alleged sub-tenant being the defendant No.5 for setting aside ex parte decree is allowed, the decree only against the said defendant No.5 be set aside. 50. Since then however we have also allowed the appeal preferred by the tenant against the order of the Trial Court rejecting the application for setting aside the ex parte decree and also allowed his application for setting aside the ex parte decree. Now that the decree has been set aside by allowing the application of the tenant also, the entire decree will stand set aside as we originally by our judgment and order dated 7th August, 2002 directed in the present appeal. 51. The learned Advocate appearing for the tenant prays for stay of operation of the order. The prayer for stay is considered and rejected. 52. All parties are to act on a signed copy of the operative part of this judgment on the usual undertaking. Appeal allowed.