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2003 DIGILAW 30 (GAU)

Sukumar Ch. Debnath v. Hiren Lal Patoa and Ors.

2003-01-17

I.A.ANSARI

body2003
LA. ANSARI, J- This revision has arisen out of the order, dated 15.6.98, passed by the learned Civil Judge (Senior Divn.) No. 2, Silchar in Title Suit No. 66/92, declining to set aside the order for ex-parte hearing of the suit and to accept the written statement of the petitioners. 2. In a nutshell, the case of the petitioners may be stated as follows:- i) The Title Suit No. 66/92 aforementioned was instituted by the opposite party Nos. 1-4 against the petitioners Nos. 1 and 2, (as defendant Nos. 6 and 4 respectively) and the remaining opposite party of this revision. The suit was for declaration of lease-hold right, title and interest of the plaintiffs to the suit land and also for ejectment of the present petitioners and opposite party No. 8, who was defendant No. 4, the case of the plaintiffs being, in brief, thus; Late Ram Narayan Potwa, i.e. the predecessor-in-interest of opposite party Nos. 1-4, purchased the leasehold right over the suit land and ownership right over the house standing thereon from the non-evictable lessees and took over possession of the same. Late Ram Naraya Potwa, then, raised permanent construction on the said land and thereby acquired the status of non-evictable lessee under Assam Urban Areas Tenancy Act. The said Ram Narayan Potwa died on 25.12.76. Thereafter a fresh settlement was effected in favour of the plaintiffs by proforma defendant No. 7. The plaintiffs allowed the defendant Nos. 1 to 4 to start a welding shop on the said land on payment of l/3rd share of profit, but the same was never paid. The defendant Nos. 1-4 have no right, title and interest over the suit property inasmuch as they are mere licensees of the plaintiffs in respect of the suit premises, but the defendant Nos. 1-4 inducted defendant Nos. 5 and 6 on some portions of the suit land without any authority. ii) The defendant Nos. 1 and 2 (i.e. opposite party Nos. 5 and 6 of the present revision), filed a joint written statement in the suit, wherein they admitted that the petitioners (i.e. the defendant Nos. 4 and 6) and the opposite party No. 9 i.e. defendant No. 5 were tenants under defendant Nos. 1 and 2. ii) The defendant Nos. 1 and 2 (i.e. opposite party Nos. 5 and 6 of the present revision), filed a joint written statement in the suit, wherein they admitted that the petitioners (i.e. the defendant Nos. 4 and 6) and the opposite party No. 9 i.e. defendant No. 5 were tenants under defendant Nos. 1 and 2. iii) The petitioner No. 1 and opposite party No. 9 entered appearance in the suit and prayed for time to file their written statement and accordingly, the matter was fixed on 12.7.93 for filing of written statement, but defendant Nos. 1 and 2 assured the petitioner No. 1 and the opposite Party No. 9 that the written statement filed by the defendant Nos. 1 and 2 had taken care of the defence of the petitioner No. 1 and also of the opposite party No. 9 and that the petitioner No. 1 and OP No. 9 need not spend money unnecessarily in the litigation as they (defendant Nos. 1 and 2) had taken the responsibility of contesting the suit in January, 1998, the petitioner No. 1 (i.e. defendant No. 6) and O.P. No. 9 (the defendant No. 5) found the conduct of the defendant Nos. 1 and 2 evasive and the same raised suspicion in the mind of the petitioner No. 1 and opposite party No. 9, whereupon they made enquiries and came to learn through advocate's clerk that the defendant Nos. 1 and 2, on the one hand, and the plaintiffs, on the other hand, had entered into a compromise and that the suit had been fixed for ex-parte hearing. Faced with such a situation, the petitioner No. 1 along with opposite party No. 9 (i.e. defendant No. 5) filed an application in the suit, on 17.1.98, praying for vacating the order for ex-parte hearing and it was at this stage that they came to know that a compromise petition had already been filed by the plaintiff and defendant Nos. 1 and 2 aforementioned, whereby they all had conspired to obtain an eviction decree against the petitioners and defendant No. 5. On 6.5.98, the petitioner No. 1 along with defendant No. 5 filed a joint written statement in the suit. 1 and 2 aforementioned, whereby they all had conspired to obtain an eviction decree against the petitioners and defendant No. 5. On 6.5.98, the petitioner No. 1 along with defendant No. 5 filed a joint written statement in the suit. The application filed by the petitioner No. 1 and defendant No. 5, on 17.1.98, has been disposed of by the impugned order, dated 15.6.98, aforementioned, whereby the learned Court below rejected the application of the petitioner No. 1 and defendant No. 5 seeking to get the order for ex-parte hearing vacated and declined to accept the written statement of the petitioner No. 1 and the defendant No. 5. iv) As regards the petitioner No. 2 (who has been made petitioner No. 2 by the order of transposition passed in Misc. Case 10/ 2003) it is pertinent to note that this petitioner's case, briefly stated, is thus. On 4.5.97, some revenue officials visited the suit had land and took measurement of the suit property, which included the business premises of the petitioner No. 2. The plaintiffs of the TS 66/92 aforementioned were also present there at the time of taking of the said measurement. Though the petitioner No. 2 made enquiry from the Revenue officials as to why measurement of his business premises was being taken, the Revenue officials remained silent, but upon repeated enquiry from the plaintiffs (i.e. opposite party Nos. 1 to 4 of this revision) the petitioner No. 2 came to know that a case had been instituted against the petitioner No. 2 and others praying for their eviction from the suit property. On the following day, the petitioner No. 2, on enquiry, came to learn that though the (i.e. petitioner No. 2) and his mother had been impleaded as defendants in the said suit, neither he nor his mother had ever received any summons from the Court nor did they have any information or knowledge with regard to the said suit. The petitioner No. 2, then, made an application, on 6.5.97, praying for allowing him an opportunity to contest the suit by filing his written statement. No order was, however, passed on this application. The petitioner No. 2, then, filed another application, on 8.1.98, praying for vacating the ex-parte order of hearing and to give him an opportunity to contest the suit by filing written statement. No order was, however, passed on this application. The petitioner No. 2, then, filed another application, on 8.1.98, praying for vacating the ex-parte order of hearing and to give him an opportunity to contest the suit by filing written statement. v) Upon hearing the learned counsel for the parties, the learned trial Court passed the impugned order, dated 15.6.98, rejecting the prayer of the petitioner No. 2. 3.1 have perused the materials on record including the impugned order, I have heard Mr A.K. Das, learned counsel for petitioner No. 1 Mr N. Choudhury, learned counsel for petitioner No. 2 and Mr B.C. Das, learned counsel appearing for opposite party Nos. 1-4. 4. Appearing on behalf of the petitioner No. 1 Mr A.K. Das, submits that though the petitioner No. 1 along with defendant No. 5 (i.e. O.P. No. 9) upon receiving the summons appeared in the suit and sought time to file written statement, opposite party Nos. 5 and 6 assured the petitioner No. 1 and defendant No. 5 that they (O.P. Nos. 5 and 6) had taken care of the interest of the petitioner No. 1 and defendant No. 5 and that they did not unnecessarily spend money in the litigation and, on the basis of the assurance so received, the petitioner No. 1 and defendant No. 5 did not contest the suit, but having so assured the petitioner No. 1 and defendant No. 5, the defendant No. 1 and in conclusion with the plaintiffs, sought to obtain an eviction decree against the petitioner No. 1 and defendant No. 5 and it was in such a situation that the petitioner No. 1 and defendant No. 5 filed an application praying for vacating the order for ex-parte hearing passed in the suit, but, without any justified reason, the learned trial Court refused to set aside the order for ex-parte hearing. It is also submitted by Mr A.K. Das that in a situation, as the present one, the Court should not adopt punitive attitude against the party concerned; rather, the Court should allow the party concerned to contest the suit so that justice can be effectively meted out to the parties. 5. In support of his submission that while dealing with the application for vacating the order for ex-parte hearing, the Court should not adopt a punitive approach, Mr. 5. In support of his submission that while dealing with the application for vacating the order for ex-parte hearing, the Court should not adopt a punitive approach, Mr. A.K. Das, has referred to AIR 1955 SC 425 and 2002(3) SCC 54. 6. So far as Mr Choudhury is concerned, his submission is that the petitioner No. 2 never received any summons and it was only on 4.5.97, when the measurement was being taken of the suit property by the revenue officials that the petitioner No. 2 came to learn that a suit had been instituted for his eviction from the suit property. It was in such circumstances that the petitioner No. 2 had made an application, on 6.5.97, praying for allowing him to file written statement and contest the suit, but no order was passed on this application and the then, filed another application, on 8.2.98, praying for vacating the order for ex-parte hearing and for allowing him to contest the suit by filing written statement, but this application was rejected by the learned trial Court without any justified reasons. 7. Controverting the above submissions made on behalf of parties, Mr B.C. Das has submitted that in the case at hand, the power of revision under Section 115 of the CPC cannot be invoked inasmuch as the impugned order would not have determined the suit even if the order would have been decided in favour of the petitioners. 8. It is also submitted by Mr B.C. Das that the revisional Court cannot ordinarily, substitute its own views in place of the views of the trial Court unless the findings of the trial Court or the views adopted by the trial Court are arbitrary or perverse. In the case at hand, points out Mr Das, the learned trial Court has assigned cogent reasons in reaching its conclusion and, hence, the findings are not arbitrary and/ or perverse and the impugned order does not deserve any interference. 9. Reacting to the above submissions made on behalf of opposite party Nos. 1-4, points out Mr Choudhury, that according to expansion to Section 141, the expression "proceedings" includes proceedings under O. IX of CPC and in this view of the matter, if the impugned order is reversed, the proceedings under O. IX, which came into existence on account of fixing of the suit for ex-parte hearing, would have been over. 1-4, points out Mr Choudhury, that according to expansion to Section 141, the expression "proceedings" includes proceedings under O. IX of CPC and in this view of the matter, if the impugned order is reversed, the proceedings under O. IX, which came into existence on account of fixing of the suit for ex-parte hearing, would have been over. Viewed from this angle, contends Mr Choudhury, the impugned order can be revised within the ambit of the provisions of Section 115. 10. Before entering into the merit of the rival submissions made before me on behalf of the parties, let me, first, determine the provisions of law whereunder the impugned order was passed. In this regard, it is pertinent to take note of the provisions of Order IX Rule 7 of C.P.C., which reads as follows: "7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance. Where the Court has adjourned the hearing of the suit ex-parte and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance." 11. A bare reading of R. 7 shows that when the suit is fixed for hearing ex-parte, the defendant may appear in the suit and if he succeeds in assigning good cause for his non-appearance the Court may allow him to contest the suit. 12. It is clear from the above that it was under O. IX R.7 that the petitioners had applied for vacating the order fixing the suit for ex-parte hearing and it was under this rule that the impugned order declining to accede to the prayer of the petitioner was passed by the learned trial Court. 13. Let us, now, deal with the question as to whether revisional power can be exercised by this Court in respect of an order passed under O. IX R.7. 13. Let us, now, deal with the question as to whether revisional power can be exercised by this Court in respect of an order passed under O. IX R.7. In this regard, it is important to note that according to Section 115(1), the revisional power can be exercised by the High Court in the cases where no appeal lies and subordinate Court appears to have exercised a jurisdiction not vested in it by law or when subordinate Court has jurisdiction but failed to exercise jurisdiction or when the subordinate Court appears to have acted in the exercise of its jurisdiction illegally or with material irregularity. The proviso to Section 115 lays down that the High Court shall not, under this Section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. Thus, the revisional power is circumscribed by the provisions of Section 115(1). A bare reading of the proviso to Section 115(1) shows that the High Court shall not exercise the revisional jurisdiction if the order, which is sought to be revised, is an order, which, even if revised, would not have brought to an end the suit or the proceeding. 14.1 may, at this stage, pause and refer to Section 141 of CPC, which defines the expression "proceedings" Section 141, it may be noted, runs as follows:- "141. Miscellaneous proceedings. The procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction." 15. If the expression "proceedings", used in Section 115(1) is given its due meaning, it will, undoubtedly, include a proceeding under O. IX, Rule 7. 16. It logically follows from the above discussion that if the impugned order had been made in favour of the petitioners it would have, undoubtedly, disposed of the proceedings under O. IX, Rule 7. Viewed from this angle, an order passed under O. IX, R.7 can be interfered within revision if the order, which is sought to be revised, can, if revised, lead to disposal of the proceeding under O. IX, Rule 7. 17. Viewed from this angle, an order passed under O. IX, R.7 can be interfered within revision if the order, which is sought to be revised, can, if revised, lead to disposal of the proceeding under O. IX, Rule 7. 17. In the case at hand, had the impugned order been decided in favour of the petitioners, it would have brought to an end the proceeding under O. IX, R.7. To a point query made by this Court, this position is not disputed by the learned counsel for the parties. 18. Now, coming to the merit of the impugned order, it is important to note that as far as the petitioner No. 1 is concerned, his case is that the O.P. 5 & 6 had assured him that his interest would be taken care of by them and that the written statement filed by the said opposite party had, indeed, taken care of the defence of the petitioner No. 1. There is no dispute before me that the opposite party 1 and 2 had filed written statement and contested the suit. The plaintiffs' case was that defendant No. 5 and 6 i.e. petitioner No. 1 and defendant No. 5 were licensees in the suit property. It is clear that the interest of the petitioner No. 4 had been taken care of by the opposite party Nos. 5 & 6 in their written statement. This position was sought to be changed by the compromise petition, which was filed by the plaintiffs and the defendant Nos. 1 and 2. At para 3 of the compromise petition, the parties had stated as follows: "The defendant No. 6, whose eviction has been sought for and who in spite of receipt of summons has not contested the suit, may be evicted by putting this compromise decree into execution by the plaintiff and pro-defendant No. 12, when it is felt necessary." 19. Even a cursory combined reading of the written statement and also of the compromise petition shows that the stand of the contesting defendants taken in the compromise petition was wholly inconsistent with, and contrary to, the stand, which they had taken in the compromise petition. It is also abundantly clear that the stand of the contesting defendants taken in the compromise petition was wholly prejudicial to the interest of the petitioner No. 1. 20. It is also abundantly clear that the stand of the contesting defendants taken in the compromise petition was wholly prejudicial to the interest of the petitioner No. 1. 20. Situated thus, there can be no escape from the conclusion that even if one percent of what the petitioner No. 1 has alleged against the defendant Nos. 1 & 2 were true, then, the Court could not have ignored the case of the petitioner No. 1 and allowed him to suffer the compromise decree for the mere reason that the petitioner No. 1 had not contested the suit and a period of 6 years had lapsed since the date of institution of the suit. 21. It is well settled that the power given in O.9 R. 7 is not punitive in nature. The Courts exist for rendering substantive justice and when it was brought to the notice of the learned trial Court that the petitioner No. 1 would suffer irreparable loss, if he was not allowed to contest the suit, the learned trial Court ought not to have declined to allow the petitioner No. 1 contest the suit. 22. I have carefully perused the impugned order, but I do not find that the learned trial Court has come to the conclusion that the petition for vacating order for ex-parte hearing made by the petitioner No. 1 was based on false assertions. In the absence of any such finding, it was highly improper on the part of the learned trial Court not to allow the petitioner No. 1 to contest the suit. It is also important to bear in mind that the disposal of the suit had not been delayed not for omission to file the written statement by the petitioner No. 1. 23. For what have been pointed out above, I have no hesitation in concluding that the impugned order to the extent that it adversely affects the interest of petitioner No. 1 deserves to be set aside. 24. Turning to the case of petitioner No. 2, it is important to note that according to the process server's report, the petitioner No. 2 had received the summons of the suit as defendant No. 4. Be that as it may, the petitioner No. 2 appeared in the suit and disputed the correctness of the said report by filing his application, dated 6.5.97, which was supported by affidavit. Be that as it may, the petitioner No. 2 appeared in the suit and disputed the correctness of the said report by filing his application, dated 6.5.97, which was supported by affidavit. From the impugned order, it is not clear that the report of the process server was supported by affidavit. In a situation, such as the present one, the learned trial Court ought to have examined the process server as a witness, because it was the trial Court, which had accepted the process server's report, without examining him. This apart, since the Court has to do substantive justice, the learned trial Court ought to have allowed the parties concerned to file written statement so that the suit is not disposed of by default and the same is disposed of on merit. Looked at from this angle, the impugned order is bad in law and cannot be allowed to stand as good on record. 25. In the result and for the reasons discussed above, this revision succeeds and impugned order is set aside and the petitioners are allowed to file their written statements and contest the suit. 26. In order to ensure expeditious disposal of the suit, parties are hereby directed to appear before the learned trial Court on 10.3.2003, for further necessary order. It is, however, directed that since the suit has been pending for long 10 years, the learned trial Court shall dispose of the suit expeditiously and preferably within a period of 3 months from the date of receipt of a copy -of this judgment and for this purpose, if necessary, the Court may hold day to day hearing of the suit. Let the LCR be sent back along with a copy of the judgment and order.