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2006 DIGILAW 138 (CAL)

ANANDA JHAWAR v. RINKU JHAWAR (NEE) PATWARI

2006-03-06

PRATAP KUMAR RAY

body2006
Pratap Kumar Ray, JJ. ( 1 ) HEARD the learned Advocates appearing for the parties. ( 2 ) IN the instant case, the petitioner has assailed the order dated 16th november, 2005 passed in Misc. Case No. 201 of 2005 arose out of an application under Section 24 of the Civil Procedure Code praying, inter alia, for change of the Court to adjudicate the application filed under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte order as filed by the present petitioner before the trial Court, which passed such ex parte decree. ( 3 ) THE fact leading to this application is very short. A Matrimonial Suit was fixed for hearing and on that date the respondent/ wife completed Examination-in-Chief upon service of the copy to the learned advocate appeared for the petitioner/husband. Though a counter claim was filed in the form of an additional written statement by the husband/opposite party therein, the trial Court did not allow any adjournment but proceeded with the case and ultimately the petitioner/husband has suffered an exparte judgment and decree. Against an ex parte judgment and decree, an application under order 9 Rule 13 of the Code of Civil Procedure was filed praying setting aside of the exparte judgment and order and simultaneously an appeal was also preferred to the higher Court assailing the judgment and decree on merit. The petitioner filed an application under Section 24 of the Code of Civil Procedure praying change of the Court on the ground that the learned Court below who decided the matter ex parte was biased against the petitioner/husband and the petitioner/ husband would suffer prejudice only on the ground that the self-same Presiding officer who was dealing with the matrimonial suit was vested with the adjudication of a sessions case under Section 498a of the Indian Penal Code. This application under Section 24 of the Code of Civil Procedure registered as Misc. Case No. 201 of 2005 which since has been rejected by the learned District Judge, the petitioner has assailed that order dated 16th November, 2005. ( 4 ) FOR effective adjudication, the ground praying for transfer of the proceeding namely, application as pending under Order 9 Rule 13, Civil Procedure code is required to be considered first. Case No. 201 of 2005 which since has been rejected by the learned District Judge, the petitioner has assailed that order dated 16th November, 2005. ( 4 ) FOR effective adjudication, the ground praying for transfer of the proceeding namely, application as pending under Order 9 Rule 13, Civil Procedure code is required to be considered first. Paragraphs 20 and 21 are only the grounds set up for such transfer, which read to this effect: -"20. The petitioner reasonably feels and has good reason to feel that the Sessions case under Section 498a of the I. P. C. was before the same Judge, he is likely to be prejudiced and biased against the petitioner-respondent of the matrimonial suit and such circumstances are likely to result in failure of justice. In fact on the same Court ought not to bring for sessions case and matrimonial suit. 21. In the facts and circumstances aforesaid and others, your petitioner feels that the learned 4th Additional District Judge may not hear and dispose of 09r 13-App in an unbiased manner and as such your petitioner seeks transfer of the said 09 R 13-App and also entirety of the said Mat. Suit being Mat. Suit No. 6 of 2004 in the Court of the learned 4th Additional district Judge to be transferred to any Additional District Judge at Alipore as this learned Court may deem fit and proper". ( 5 ) BEFORE the learned Court below the learned Advocate for the opposite party submitted that since a civil appeal was pending, the application praying for setting aside of the ex parte decree under Order 9 Rule 13 of the Code of civil Procedure became infructuous. It is further contended therein that there was no material to change the Court. However, the learned Court below on the basis of the material rejected the application with this findings" I am of clear opinion that apprehension in the mind of the petitioner could not be established and as such, I do not find any reason to allow the application". However, the learned Court below on the basis of the material rejected the application with this findings" I am of clear opinion that apprehension in the mind of the petitioner could not be established and as such, I do not find any reason to allow the application". There is no doubt that assailing the ex parte judgment and decree there are three forums open, namely application praying review of ex parte judgment and decree if the ground of review is satisfied, a regular appeal assailing the ex parte judgment and decree on merit and a miscellaneous proceeding in the nature of application under Order 9 Rule 13 of the Civil Procedure Code only on two limited grounds namely non-service of summons and the sufficiency of the reason as prevented to contest the matter when the matter was called on. From the statutory provision under Order 9 Rule 13, Civil Procedure Code it is clear that there is no embargo of pendency of the two proceedings at a time namely application under Order 9 rule 13, Civil Procedure Code and a regular appeal challenging such judgment and decree. In view of the simple reason that the adjudicator/ domain of both the two aforesaid forums are contoured and identified by separate distinctive features namely that in a proceeding under Order 9 Rule 13, Civil Procedure code, the contour is limited only on the two grounds of non-service of summons which prevented the judgment-debtor to contest the matter and/or sufficient reason which prevented the judgment-debtor to contest the matter which practically is limited within the domain of procedural aspect of the matter namely, appearance of the judgment-debtor in the suit in question in this context. Whereas a regular appeal assailing such judgment and decree is contoured with the adjudicatory field on merit about legality and validity of the judgment itself and its finding thereof including lapses, if any, which also could be construed as a question of law of the appeal itself. Hence, the two proceedings having separate features and differently defined and identified jurisdictional field cannot be construed as production of conflicting views to attract the doctrine of parallel proceeding. Hence, the two proceedings having separate features and differently defined and identified jurisdictional field cannot be construed as production of conflicting views to attract the doctrine of parallel proceeding. Furthermore, the explanation of Order 9 Rule 13, Civil Procedure code has further clarified the issue by directing that once an appeal is preferred and same is disposed of on merit, subsequently no application under Order 9 rule 13, Civil Procedure Code could be filed for the reason to avoid conflicting decision under application of parallel proceeding, as in the appeal, a party is getting an opportunity to assail even the procedural part to identify the illegality thereto for the purpose of formulating a law involved therein in that appeal. That explanation is also has been prescribed having regard to a public policy and also having regard to the doctrine of constructive res judicata principle so that a litigant may not approach the different forums with different applications for identical and self-same cause of action. ( 6 ) HENCE, having regard to such legal position, surely the submission of the learned Advocate appearing for the opposite party in the Court below and/or if it is considered as finding of the learned Court below as from the impugned order it is not clear whether it is the finding of the learned Court below or submission of the learned Advocate to this extent that due to pendency of an appeal assailing the ex parte judgment and decree, an application under Order 9 Rule 13, Civil Procedure Code became infructuous, has no legal basis to stand. ( 7 ) NOW, the moot question here as to whether the impugned order of the learned Court below rejecting the application under Section 24 of the Civil procedure Code could be considered as an order based on perverse finding to interfere with in the jurisdiction under Article 227 of the Constitution of India. It is a settled law that jurisdiction under Article 227 of the Constitution of India is an extra-ordinary constitutional jurisdiction which is required to be exercised sparingly for the ends of justice. It is a settled law that jurisdiction under Article 227 of the Constitution of India is an extra-ordinary constitutional jurisdiction which is required to be exercised sparingly for the ends of justice. It appears from the impugned order that with reference to the material as placed namely paragraphs 20 and 21 as already quoted above in the application under Section 24 of the Code of Civil Procedure, the learned Court below held that those did not satisfy the establishment of apprehensive factor as would lead the mind of the petitioner that the Presiding officer would act in biased manner. On a scanning of aforesaid paragraphs 20 and 21 it appears that only ground urged that since the Presiding Officer would decide the application under Order 9 Rule 13 of the Civil Procedure Code and more particularly who passed the ex parte judgment and. decree was vested with further jurisdiction to deal with the. sessions case relating to an offence under Section 498a of the Indian Penal Code between the self-same parties, the petitioner would be prejudiced, which this Court is not finding as a good ground to apply the doctrine of bias and prejudice. Vesting of the power of a particular Court to decide a civil lis and the criminal matters, cannot be ipso facto would lead to the conclusion that Court would be biased. ( 8 ) HENCE, having regard to such, once the learned Court below decided the issue by holding that the petitioner could not establish the ground and thereby rejected the application under Section 24 of the Code of Civil Procedure which is nothing but an exercise of discretionary power by the Court below, this Court is not finding any perversity as would empower the Court to interfere with the impugned order sitting in the jurisdiction under Article 227 of the constitution of India. Considering that aspect this application stands dismissed. There will be no order as to costs.