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2005 DIGILAW 414 (GAU)

Promode Basumatary v. Civil Judge

2005-05-26

BIPLAB KUMAR SHARMA

body2005
JUDGMENT Biplab Kumar Sharma, J. 1. The basic facts material for the purpose of disposal of this application under Article 226/227 of the Constitution of India are as follows: 2. The Respondent No. 2 herein as the Plaintiff instituted Money Suit No. 291/2000 against the present Petitioner as the Defendant in the Court of Civil Judge, Senior Division, Guwahati. An ex-parte judgment and decree was passed on 03.12.2001, which, however, was set aside upon making an application by the Defendant/Petitioner under Order 9, Rule 13 Code of Civil Procedure, which was registered and numbered as Misc. Case No. 57/ 2003. The order was passed on 24.08.2004 awarding a cost of Rs. 500/- 3. With the order passed on 24.08.04 in Misc. Case No. 57/03 setting aside the ex-parte judgment and decree, the trial Court also passed an order in the money suit fixing the next date as 15.09.04 for appearance of the parties. Orders passed on 24.08.04 and thereafter have been indicated in Annexure-B to this petition, which are reproduced below: 24.08.04: M.S. No. 291/2000 In view of the order passed in Misc. Case No. 57/03 the judgment and decree is set aside. The parties will appear on next date. Fix on 15.09.04 for appearance. Sd/-Illegible Civil Judge (Sr. Divn.) No. 1 Kamrup, Guwahati 15.09.04: Ld. Advocate for the plaintiff is present. Defendant is absent. Fix on 04.10.04 for appearance. Sd/-Illegible Civil Judge (Sr. Divn.) No. 1 Kamrup, Guwahati 04.10.04: Plaintiff is present. Defendant is absent. Defendant remained absent even after the suit is restored. Hence the suit will proceed ex-parte. Fix on 02.12.04 for ex-parte hearing. Sd/-Illegible Civil Judge (Sr. Divn.) No. 1 Kamrup, Guwahati 02.12.04: Both parties are present. Defendant vide Ptn. No. 3123/04 has prayed to vacate the orders for ex-parte hearing. Fixing on 13.12.04 for objection hearing. Sd/-Illegible Civil Judge (Sr. Divn.) No. 1 Kamrup, Guwahati 13.12.04: Both parties are present. Defendant has deposited the amount of cost of Rs. 500/-. Amount be paid to plaintiff. Heard both sides on ptn. For vacating the order for ex-parte hearing. Fix on 23.12.04 for orders. Sd/-Illegible Civil Judge (Sr. Divn.) No. 1 Kamrup, Guwahati 23.12.04: P.O. is on leave, both parties are present Fix on 18.01.05 for N/O. Sd/- Illegible Civil Judge (Sr. Divn.) No. 1 Kamrup, Guwahati" 4. 500/-. Amount be paid to plaintiff. Heard both sides on ptn. For vacating the order for ex-parte hearing. Fix on 23.12.04 for orders. Sd/-Illegible Civil Judge (Sr. Divn.) No. 1 Kamrup, Guwahati 23.12.04: P.O. is on leave, both parties are present Fix on 18.01.05 for N/O. Sd/- Illegible Civil Judge (Sr. Divn.) No. 1 Kamrup, Guwahati" 4. On 18.01.2005 the learned Civil Judge passed the impugned order rejecting the prayer of the Petitioner to vacate the order for ex-parte hearing. 5. It is the legality and validity of the said order which is under challenge in this proceeding. Mr. D. Baruah, learned Counsel for the Petitioner has basically made the following submissions. i) The trial Court did not take into account the provisions of Order-V, Rule 1,2 and 5 Code of Civil Procedure. ii) The trial Court passed the impugned order in utter disrespect of the provisions of Order IX Rule Code of Civil Procedure. iii) No summons/notice having been served on the Petitioner, the trial Court could not have assumed jurisdiction under Order IX Rule 6 Code of Civil Procedure. iv) The Petitioner having appeared only in the miscellaneous proceeding relating to setting aside of the ex-parte judgment and decree, although he was aware of the order dated 24.08.04, passed therein, he had no knowledge regarding the dates fixed in the suit inasmuch as no summons/notice was served on him in respect of the suit. v) The trial Court, at least for ends of justice ought to have allowed the prayer of the Petitioner giving him a chance to contest the claim of the Plaintiff/Respondent. 6. Mr. Baruah has placed reliance on the following decisions: 1) (2002) 5 SCC 30 (Vijay Kumar Madan v. R.N. Gupta Technical Education Society). 2) (2002) 5 SCC 377 (Sushil Kumar Sabharwal v. Gurpreet Singh) 3) (2002) 4 SCC 697 (Deoraj v. State of Maharashtra) 4) AIR 1955 SC 455 (Shiromani Gurdwara Probandhak Committee v. Lt. Sardar Raghubir Singh and Ors.) 5) AIR 1994 Bom 141 (Jagdish Balwartrao Abhyankar v. State of Maharashtra). 7. Countering the above arguments of Mr. Baruah, learned Counsel for the Petitioner, Mr. A.R. Medhi, learned Counsel for the Plaintiff Respondent submits that there is no infirmity in the impugned order. He submits that going by the sequence of events, there is no manner of doubt that the Petitioner has adopted the tactics of delaying the proceeding. 7. Countering the above arguments of Mr. Baruah, learned Counsel for the Petitioner, Mr. A.R. Medhi, learned Counsel for the Plaintiff Respondent submits that there is no infirmity in the impugned order. He submits that going by the sequence of events, there is no manner of doubt that the Petitioner has adopted the tactics of delaying the proceeding. He further submits that the Petitioner having appeared in the miscellaneous proceeding for setting aside the ex-parte decree, it cannot be said that he was unaware about the suit. According to him, there was no question of fresh issuance of summons/notice to the Petitioner. He also placed reliance on the examination-in-chief and cross-examination of the Petitioner in the miscellaneous proceeding to bring home his point of argument that the Petitioner was aware about the date fixed in the suit. 8. I have given my anxious consideration to the submissions made by the learned Counsel for the parties and the materials on record. The learned Civil Judge has passed the impugned order primarily on the ground that the Petitioner had the knowledge of the suit in view of his appearance in the miscellaneous proceeding. As regards the dates fixed in the suit, the learned Civil Judge has presumed knowledge of the same on the part of the Petitioner. Learned Civil Judge found the Petitioner to be negligent more particularly in-view of the fact that he is an employee of judicial establishment. The trial Court found the plea of the Petitioner that summons/notice of the suit was not served on him to be untenable under the given facts and circumstances. It also held that the application filed by the Petitioner invoking inherent jurisdiction of the Court under Section 151 Code of Civil Procedure instead of filing the application under Order 9 Rule 7 Code of Civil Procedure to be not maintainable. 9. Before proceeding to decide the matter on merit I first decide the question of maintainability of the application filed by the Petitioner under Section 151 Code of Civil Procedure for setting aside the order for ex-parte hearing. It is true that when there is express provision in the Code of Civil Procedure for the same, the Petitioner ought not have taken recourse to Section 151 Code of Civil Procedure. 10. It is true that when there is express provision in the Code of Civil Procedure for the same, the Petitioner ought not have taken recourse to Section 151 Code of Civil Procedure. 10. It is now well settled that when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong provision, if it can be shown to be within its power under any other provision. If the power is otherwise established, the fact that the source of power has been incorrectly described in the order would not make it invalid. If any authority is required, one may refer to the decisions of the Apex Court as reported in AIR 1974 SC 1281 (H.L. Mehra v. Union of India); AIR 1958 SC 232 (P. Balakotaial v. Union of India) and AIR 1964 SC 264 (Atzal Ullat v. State of Uttar Pradesh). 11. The case of Jagdish Balwartrao (Supra) is on the same principle. The observation made by the Court (Full Bench) in paragraph 21 of the judgment is quoted below: Sometimes it does happen that an application is filed under a particular provision of a statute and it is found to be not maintainable thereunder or the Court or Tribunal has no power to grant the relief asked for thereunder but the said application is maintainable under some other provision of the statute before the same Court or. Tribunal and it has power to grant the relief asked for, it is in such cases that it has always been held that the "label" or the "nomenclature" of the application or petition should not matter and after seeing the substance or contents of the application, if it is possible to grant the relief under some other provision of the statute, such a relief should not be denied to a party. It is, however, material to note that such a recourse is taken only when it is found that the relief asked for cannot be granted under the provisions under which the jurisdiction of the Court or Tribunal is invoked, much less when the result would be to deprive the party of a right of appeal provided against the order passed under such a provision. 12. 12. In the instant case the source of power is traceable with specific provisions made in the Code of Civil Procedure for setting aside order for ex-parte hearing. Once the same is established, an application for invoking the said power and jurisdiction making mention of a provision which may not be strictly applicable, ipso facto will not render the petition not maintainable. Even otherwise also, Section 151 Code of Civil Procedure recognizes inherent power of the Court by virtue of its duty to do justice and this power is in addition and complementary to powers conferred under Code of Civil Procedure, expressly or by implication. However, this power will not be exercised in conflict with any of the powers expressly or by implication conferred by other provision of Code of Civil Procedure. Order IX, Rule 7 Code of Civil Procedure does not in any way come in conflict with Section 151 Code of Civil Procedure. 13. The earlier ex-parte judgment and decree was set aside by order dated 24.08.04. The operative part of the order reads as follows: I have gone through the said case laws. It is observed that when a prayer for setting aside ex-parte decree together with a prayer for condonation of delay it is bounden duty of the Petitioner to show good and sufficient cause which prevented him from appearing in the suit/case. It is evident from the above that the Petitioner did not receive the summon even if it was sent through the registered post. From the postal receipt it is found that the notice was sent to the Petitioner in the address at Pathsala. From this cryptic address it has become difficult to ascertain whether the notice was sent in the proper address, inasmuch as no affidavit is filed by the Plaintiff/opposite parties that the notices were sent in proper address. The reputable presumption is that had the notice been sent in proper address the Petitioner would have received the same as he is working in a judicial establishment. It is not difficult to trace out the Petitioner/Defendant as he as a proper address for communication. Under the above circumstances, if the prayer for setting aside the ex-parte decree condoning the delay is not allowed the Petitioner/Defendant will be prejudiced. Hence, the prayer is allowed. It is not difficult to trace out the Petitioner/Defendant as he as a proper address for communication. Under the above circumstances, if the prayer for setting aside the ex-parte decree condoning the delay is not allowed the Petitioner/Defendant will be prejudiced. Hence, the prayer is allowed. The ex-parte judgment and decree dated 03.12.01 passed in M.S. No. 291/2000 is hereby set aside condoning the delay (on payment of Rs. 500/-). In view of the setting aside the ex-parte judgment and decree the Money Execution case has also become redundant. With this, the Misc. case stands disposed of on contest without cost. 14. From the above, it will be seen that the ex-parte judgment and decree was set aside holding that rebuttable presumption was that had the notice been sent at proper address, the Petitioner would have received the same as he was working in the judicial establishment. Thus, it was on the ground of non receipt of summons/notice in absence of proper address of the Defendant/Petitioner, the ex-parte decree was set aside. If that be so, same will lead to automatic consequence of the non receipt of the plaint by the Petitioner. It is in this context, learned Counsel for the Petitioner has argued that the appearance of the Defendant/Petitioner was only in the Misc. proceeding towards setting aside the ex-parte judgment and decree. He submits that it was incumbent on the Court to issue fresh summons/notice to the Defendant/Petitioner after the suit was restored for fresh trial. 15. It is true that in the normal circumstances, a Defendant appearing in a proceeding for setting aside ex-parte judgment and decree is also aware of the claim made in the plaint. In all probability, the Petitioner also collected the copy of the plaint and other materials in the suit. However, that by itself cannot lead to the automatic presumption of service of summons/notice with copy of the plaint on the Defendant. One can legitimately argue that after setting aside of the ex-parte judgment and decree and the restoration of the suit to the original stage, necessary formalities towards issuance of summons/notice as envisaged under the provisions of the Code of Civil Procedure will have to be followed. There is no dispute that no fresh summons/notice was sent to the Defendant/Petitioner. After allowing Misc. proceeding in favour of the Defendant/Petitioner, orders were passed in this suit for appearance of the parties. There is no dispute that no fresh summons/notice was sent to the Defendant/Petitioner. After allowing Misc. proceeding in favour of the Defendant/Petitioner, orders were passed in this suit for appearance of the parties. Due to non-appearance of the Defendant/Petitioner on two successive dates, the order dated 04.10.04 was passed to the effect that the suit would proceed ex-parte. 16. The Defendant/Petitioner prayed for setting aside the order for ex-parte hearing and the same has been rejected by the impugned order on presumption of service of summons/notice on the Defendant/Petitioner. As observed above, in the normal circumstances, such a presumption cannot be said to be unfounded. However, having regard to the plea of the Defendant/Petitioner that he was not served with summons/notice and also the plaint, I am of the considered opinion that the Defendant/Petitioner should be given another opportunity to appear in the proceeding of money suit No. 291/2000 by filing his written statement. The decisions on which Mr. Baruah, learned Counsel for the Defendant/Petitioner placed reliance also finds support in respect of the contentions raised by the Defendant/Petitioner. 17. As has been observed by the Apex Court in the case of Roshan Deen v. Preeti Lal reported in AIR 2002 SC 33 , the power conferred on the High Court under Article 226and 227 of the Constitution is to advance justice and not to thwart it. The very purpose of the constitutional powers being conferred on the High Courts is that no man should be subject to injustice by violating law. The look out of the High Court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the by product of an erroneous view of law the High Courts is not expected to erase such justice in the name of correcting the error of law. 18. In the instant case, the ex-parte judgment and decree was set aside by order dated 24.08.04. At the same date an order was passed in the suit for appearance of the parties on 15.09.04. On the said date the Defendant/Petitioner did not appear and in the latter date on 04.10.04 also he did not appear on which date the order for ex-parte proceeding of the suit was passed. At the same date an order was passed in the suit for appearance of the parties on 15.09.04. On the said date the Defendant/Petitioner did not appear and in the latter date on 04.10.04 also he did not appear on which date the order for ex-parte proceeding of the suit was passed. Although under the given circumstances, a presumption can be drawn regarding knowledge of the Petitioner about the plaint and the dates fixed in the suit, but such a presumption, in my considered opinion can not result in conviction so as to hold that the Defendant/Petitioner was served with summons/notice along with the plaint. 19. In view of the above, I am of the considered opinion that the impugned orders dated 04.10.04 and all consequential orders including the one dated 18.01.05, need interference of this Court. 20. The writ petition stands allowed. The Defendant/Petitioner shall now appear before the learned Civil Judge (Sr. Division) No. 1, Guwahati, in which the aforesaid money Suit No. 291/2000 is pending on 15.06.05. Upon such appearance he shall be furnished with the copy of the plaint and the suit will proceed thereafter in accordance with the provisions of the Code of Civil Procedure. 21. The writ petition stands allowed. However, there shall be no order as to costs. Appeal allowed.