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2006 DIGILAW 595 (GAU)

Md. Raifuddin Ahmed alias Rickbaba v. Lakheswar Dutta

2006-06-22

BIPLAB KUMAR SHARMA

body2006
JUDGMENT B.K. Sharma, J. 1. This application under Article 227 of the Constitution of India is directed against the order dated 10.5.2006 passed by the learned Civil Judge (Senior Division), No. 2 Kamrup, Guwahati in Misc. (3) Case No. 220/2005 refusing to condone the delay towards restoration of the suit in question which was dismissed for default. 2. The petitioner as the plaintiff instituted Title Suit No. 166/2003 against the defendant, i.e., the respondent herein in respect of the suit property praying for a decree of permanent injunction restraining the defendant from interfering with the possession of the plaintiff over the suit land and for a declaration that the plaintiff has the right to possess and enjoy the suit land being the owner of the same. The defendant-respondent has responded to the notice issued in the suit by filing his written statement contending, inter alia, that the suit is bad for non-joinder of necessary party and that the suit has been filed with false statement regarding claim of ownership. 3. If appears that the defendant-respondent made a prayer for deletion of his name oh ground of being not a necessary party to the suit. However, the same was rejected seeking a review of, which he filed an application. The said application was dismissed by order dated 7.4.2005. However, we are not concerned with this aspect of the matter in the present proceeding. The plaintiff did not appear before the court on 9.3.2005. However, his prayer, for amendment of the plaint by way of impleading party defendants was allowed upon recording the no objection of the defendant-respondent. It appears that although the prayer for impleading the party defendant was allowed, the plaintiff-petitioner did not take any step in the matter and the same was recorded in the order dated 19.3.2005 on which date also, the plaintiff-petitioner did not appear nor took any step. Thereafter the matter was fixed on 7.4.2005 for hearing on the review petition filed by the defendant-respondent. It appears that on that day also there was no appearance on behalf of the plaintiff-petitioner. However, the prayer for review made by the defendant-respondent was rejected and the matter was fixed on 26.5.2005 for personal appearance of the plaintiff-petitioner. 4. In the said order dated 7.4.2005, it was recorded as to how the plaintiff-petitioner did not take steps in the suit since 9.3.2005. However, the prayer for review made by the defendant-respondent was rejected and the matter was fixed on 26.5.2005 for personal appearance of the plaintiff-petitioner. 4. In the said order dated 7.4.2005, it was recorded as to how the plaintiff-petitioner did not take steps in the suit since 9.3.2005. Accordingly, he was directed to appear personally before the court on the next date fixed with the stipulation of passing necessary order upon failure to do so. 5. On 26.5.2005 also, the plaintiff-petitioner did not appear and also did not take any step. Thus, it was recorded in the order passed on that day that the plaintiff-petitioner did not take steps in the suit on several dates. As noticed above, as per the aforesaid order dated 7.4.2005, the plaintiff-petitioner was to appear personally before the court. There is no dispute that the plaintiff-petitioner neither appeared before the court nor took any step since 9.3.2005. In the meantime his prayer for amendment of the plaint was allowed by order dated 9.3.2005 in his absence. Thus, naturally he also did not take any step in the proceeding for further progress of the suit, after his prayer for amendment was allowed. 6. It is in the aforesaid circumstances, the learned Civil Judge has dismissed the suit by order dated 26.5.2005 when the plaintiff-petitioner once again did not appear before the court and also did not take any step. Thereafter, the plaintiff-petitioner filed an application under Order 9, Rule 9 CPC for restoration of the suit. The application was filed on 10.8.2005. Only ground assigned in the petition for restoration of the suit was that on 26.5.2005 the engaged senior counsel of the plaintiff-petitioner was out of station and failed to communicate with the petitioner and consequently no steps could be taken. The application was supported by an affidavit. On a bare perusal of the same, it reflects the callous approach of the plaintiff-petitioner. Although the supporting affidavit was a typed one with the date "21st day of July, 2005" but striking out the same, the date "10th day of August, 2005" was inserted. Although the petition under Order 9, Rule 9 CPC contained only 8 paragraphs, in the supporting affidavit, paragraph 2 contained the statement that the statements made in paragraph 1 to 11 are true to the knowledge of the plaintiff/petitioner. Although the petition under Order 9, Rule 9 CPC contained only 8 paragraphs, in the supporting affidavit, paragraph 2 contained the statement that the statements made in paragraph 1 to 11 are true to the knowledge of the plaintiff/petitioner. Coupled with this, the copy of the restoration petition annexed to this revision application does not indicate any verification of the pleadings. Similarly, the copy of the delay condonation petition although contains the verification and the supporting affidavit, but the same are without the verification of the paragraphs and relevant column. This is contrary to the provisions of Order 16, Rule 15 CPC. 7. The Division Bench of this court in the cases reported in (1998) 2 GLR 221 (Matadin Mour v. Prahlad Kumar Mour) and (1998) 2 GLR 242 (Pradyut Sarma v. APSC and Ors.) emphasized the, need for proper verification of affidavit to the pleadings. It must not be forgotten that the administration of justice in a very large measure depends on oath, which is the fountainhead of purity of judicial proceedings. The Apex Court in the case of Sudha Devi v. M.P. Narayanan and so also in Savithramma v. Cecil Norontha both reported in [1988] 3 SCR 756 and 1987 respectively dealt with the evidentiary value of the affidavit and as to how defective verification has not only no probative value, but also deprecated the practice of filing such affidavit. In the case of Salem Advocate Bar Association v. Union of India reported in AIR 2005 SC 3353 , the Apex Court observed that the affidavit required to be filed under amended Section 26(2) and Order 6, Rule 15(4) of the Code has the effect of fixing additional responsibility on the deponent as to the truth of the facts stated in the pleadings. 8. Since, there was delay in filing the application under Order 9, Rule 9 CPC seeking restoration of the suit, the plaintiff-petitioner also filed an application under Section 5 of the Limitation Act, 1963 for condonation of delay, which was registered as Misc. Case No. 220/2005. In paragraphs 4, 5, 6 and 8 of the petition, the petitioner stated, thus: 4. That the applicant had filed an application under Order 39, Rule 2A read with Section 151 of the CPC and the opposite party filed objection against the petition as aforesaid. Case No. 220/2005. In paragraphs 4, 5, 6 and 8 of the petition, the petitioner stated, thus: 4. That the applicant had filed an application under Order 39, Rule 2A read with Section 151 of the CPC and the opposite party filed objection against the petition as aforesaid. The suit as well as the petition for violation of injunction was fixed on 26.5.2005 for hearing of objection against the petition for violation of injunction. On that day the counsel engaged by the applicant was out of station and the applicant was not aware about such absence of his engaged advocate, therefore could not take steps and the petition for violation of injunction was dismissed for default. 5. That the applicant is a businessman and was busy with his business and was away from Guwahati during the month of July 2005, therefore, could not contact his engaged counsel nor his counsel informed him about such dismissal of the petition under Order 39, Rule 2(A) on 8.8.2005 the application went to the residence of his counsel and the counsel told the applicant he will be verify the matter on the next date, i.e., on 9.9.2005 in this hon'ble Court and on the very next date the counsel for the applicant enquired in this hon'ble Court and came to know that the suit was dismissed for default on 26.5.2005. The applicant on the very same day also inquired in the office of this hon'ble Court and also came to know that the petition under Order 39, Rule 2A was dismissed for default on 26.5.2005. 6. That the applicant has filed an application on 10.8.2005 for restoration of the petition under Order 39, Rule 2A. There was delay of 45 days in filing the application for restoration of the petition under Order 39, Rule 2A. The application for restoration of the suit ought to have been filed on 25.6.2005 but the same could not be filed under the facts and circumstances stated hereinabove. 8. That the reasons stated hereinabove are the sufficient cause within the meaning of Section 5 of the Limitation Act, therefore, the delay of 45 days in filing the application for restoration of the petition under Order 39, Rule 2Amay be condoned for ends of justice. 9. 8. That the reasons stated hereinabove are the sufficient cause within the meaning of Section 5 of the Limitation Act, therefore, the delay of 45 days in filing the application for restoration of the petition under Order 39, Rule 2Amay be condoned for ends of justice. 9. With the above statements in the petition for condonation of delay, the prayer made in the petition was as follows: In the premises aforesaid it is most respectfully prayed that your honour may be pleased to condone the delay of 45 days in filing application for restoration of the petition under Order 39, Rule 2A and/or pass any other or further order/orders as your honour may deem fit and proper. 10. On perusal of the above statements and the prayer, strictly speaking the application filed under Section 5 of the Limitation Act, 1963 registered as Misc. Case 220/2005 was for condoning the delay in filing the application for restoration of the petition under Order 39, Rule 2A. Thus, perhaps on earlier occasion the petition filed by the petitioner under Order 39, Rule 2A either in the suit in question or in any other suit was dismissed for default seeking restoration of which the supporting delay condonation petition was filed and now the same has been projected to be the petition for condoning the delay in filing the application under Order 9, Rule 9 CPC for restoration of the suit. Whatever may be the reason for making use of the application in Misc. Case No. 220/2005 towards condoning the delay in filing the restoration petition pertaining to the suit, speaks only callousness on the part of the petitioner. 11. The defendant-respondent filed their objection to the prayer for condonation of delay strongly objecting to the prayer for condonation of delay. He also questioned the maintainability of the application and contended that the application was neither verified nor supported by any proper affidavit. It was also contended that there was suppression of actual fact. According to the defendant-respondent, the petitioner was involved in a criminal case being Latasil PS Case No. 81/2005 and to avoid arrest by the police he was absconding during the period in question. During, the period he also filed 'pre-arrest bail application before this court vide Bail Application No. 2117/2005 involving the aforesaid police case under Section 120(B)/365/511/506/34 IPC. 12. According to the defendant-respondent, the petitioner was involved in a criminal case being Latasil PS Case No. 81/2005 and to avoid arrest by the police he was absconding during the period in question. During, the period he also filed 'pre-arrest bail application before this court vide Bail Application No. 2117/2005 involving the aforesaid police case under Section 120(B)/365/511/506/34 IPC. 12. With the above revelation of facts the defendant-respondent contended that the petitioner resorted to falsehood and that no proper justification could be shown for restoration of the suit. The defendant-respondent specifically pleaded about the effort of the plaintiff-petitioner to mislead the court. The defendant-respondent also pointed out as to how the plaintiff-petitioner as per his own description in the suit is a resident of Sarumotoria, Dispur, Guwahati-6, but in the application for restoration and condonation of delay stated to be a resident of Tarun Nagar (Japorigog), P.S. Dispur. 13. On the basis of the above materials, the learned Civil Judge took up the matter for condonation of delay as agitated by the plaintiff-petitioner vide Misc. (J) Case No. 220/2005 and has rejected the same by the impugned order dated 10.5.2006. Consequently the application filed under Order 9, Rule 9 CPC purportedly for restoration of the suit being Title Suit No. 266/2003 has also been dismissed. 14. In paragraph 4 of the present revision petition, the petitioner has furnished explanation for his non-appearance in the court on 9.3.2005, 19.3.2005 and 7.4.2005, which were the preceding dates before dismissal of the suit for default on 26.5.2005 stating that be could not do so, because of pre-occupied business. However, in the application for restoration or in the application for condonation of delay, no such statement could be found and the only explanation furnished is the reason for non-appearance on 26.5.2005. In the application for condonation of delay, the statement made was that the suit as well as the petition for violation of injunction was fixed on 26.5.2005 for hearing of objection against the petition for violation of injunction and on that day the counsel engaged by the petitioner was out of station and the petitioner was not aware of absence of his engaged advocate and, therefore he could not take any steps. No explanation was furnished as to why no step was taken on earlier three dates, i.e., 9.3.2005, 19.3.2005 and 7.4.2005. 15. Mr. No explanation was furnished as to why no step was taken on earlier three dates, i.e., 9.3.2005, 19.3.2005 and 7.4.2005. 15. Mr. S. Ali, learned Counsel for the petitioner has strenuously argued that the mechanical approach adopted by the learned Civil Judge is required to be interfered with exercising revisional jurisdiction of this court. According to him, there was no necessity to give personal appearance of the plaintiff-petitioner and that for the default on the part of the engaged counsel, the plaintiff should not be made to suffer. In this connection he has referred to various decisions of this court and the Apex Court on the principle that a litigant may not be made to suffer for the fault of the engaged counsel. 16. Mr. M. Talukdar, learned Counsel representing the defendant/OP on the other hand has strongly objected to the prayer of the petitioner invoking the revisional jurisdiction of this court and/or the jurisdiction under Article 227 of the Constitution of India. According to him, it is the conduct of the plaintiff-petitioner, which has led to the present situation and he cannot get away with the same blaming the engaged counsel. He has also highlighted on the improper verification, etc., of the pleadings by the petitioner. 17. I have given my anxious consideration to the submissions made by the learned Counsel for the parties. I have also gone through the materials available on record including the copies of the order sheets containing the orders passed by the learned Civil Judge. There is no dispute that the plaintiff-petitioner did not take any step in the suit on four successive dates as indicated above. There is also no dispute that there was no appearance either by himself or on his behalf on all the aforesaid dates. By order dated 7.4.2005, the plaintiff-petitioner was directed to appear personally before the court on 26.5.2005, but he failed to do so and the suit was dismissed. Neither in the application for restoration nor in the application for condonation of delay, the plaintiff-petitioner assigned any reason as to why he did not take steps on 9.3.2005, 19.3.2005 and 7.4.2005 and also as to why he could not be present personally in the court on 26.5.2005 as directed vide order dated 7.4.2005. Only reason assigned was that on 26.5.2005 his engaged counsel was out of station. Only reason assigned was that on 26.5.2005 his engaged counsel was out of station. Needless to say that coming to this court invoking its jurisdiction under Article 227 of the Constitution of India, the petitioner cannot develop his case by assigning various grounds and the matter will have to be decided as was projected by the plaintiff-petitioner himself for restoration of the suit. 18. Let us now examine as to how the delay in filing the restoration petition was explained by the petitioner. The relevant paragraphs have been quoted above. The suit was dismissed for default on 26.5.2005 and the petitioner never stated as to what transpired thereafter, i.e., from 26.5.2005 to the end of June 2005. In paragraph 4 of the petition, the petitioner stated that his engaged counsel was out of station on 26.5.2005 and he was not aware of the absence of his engaged advocate. In paragraph 5 he stated that he was away from Guwahati during the month of July 2005 and, therefore, he could not contact his engaged counsel nor his counsel informed him about the dismissal of the petition under Order 39, Rule 2(A). Even if the explanation that the petitioner was away from Guwahati during July 2005 is accepted, then also there was absolutely no explanation as to what he did for the remaining days of May and whole of the month of June 2005. Even in paragraph 5 furnishing the explanation that he was away from Guwahati during the month of July 2005, same was in respect of the application under Order 39, Rule 2A and not in respect of the suit. 19. The learned Civil Judge has considered all the relevant aspects of the matter and thereafter has come to the conclusion that no sufficient cause having been shown to restore the suit, the delay condonation petition is liable to be dismissed. The reasons assigned by the learned Civil Judge towards rejection of the petition for condonation of delay cannot be said to be contrary to law. In paragraphs 10 and 11 of this revision application, the petitioner has even gone to the extent of making statement that the learned trial court took into consideration extraneous matter in arriving at the decision not to condone the delay. I do not find anything extraneous to the matter relating to the decision in the petition for condonation of delay. 20. I do not find anything extraneous to the matter relating to the decision in the petition for condonation of delay. 20. The objection of the defendant-OP to the ground assigned in the delay condonation petition that the plaintiff-petitioner was away from Guwahati during July 2005 pointing as to how the plaintiff-petitioner was avoiding arrest and in fact had prayed for anticipatory bail before this court cannot be said to be matter extraneous to the issue. There is nothing wrong in taking into consideration that aspect of the matter while deciding the application for condonation of delay. Significantly, the counsel who were engaged in the bail application, were also the counsel engaged to conduct the Title Suit. The learned Civil Judge rightly took into consideration that aspect of the matter. Learned Counsel for the respondent has produced the certified copy of the bail application being B.A. No. 1117/2005 showing involvement of the petitioner in Latasil PS Case No. 81/2005 under Section 120(B)/365/511/506/34 IPC. The petitioner had sworn the supporting affidavit to the bail application on 22.7.2005 and thus his contention that he was away from Guwahati during July 2005 is a false statement. His statement that his engaged counsel was out of station and did not intimate him about the dismissal of the suit is also false inasmuch as, as stated above the same very counsel engaged by him in the suit also represented him in the bail application. The learned Civil Judge has also noticed as to how there were altogether four learned advocates representing, the petitioner in the suit. 21. The plaintiff seeking restoration of his suit must show good reason and cannot resort to falsehood. Similarly, he will have to show sufficient cause for condonation of delay. "Sufficient cause" does not mean some omnibus statement in the application, but must be based on facts depicting the truth. In the instant case, apart from the fact that the restoration petition as well as the condonation petition was not properly verified, same were also based on falsehood. Similarly, he will have to show sufficient cause for condonation of delay. "Sufficient cause" does not mean some omnibus statement in the application, but must be based on facts depicting the truth. In the instant case, apart from the fact that the restoration petition as well as the condonation petition was not properly verified, same were also based on falsehood. Except the statement that the petitioner was away from Guwahati during July 2005, no other ground having been assigned for condonation of delay and on the basis of the materials on record, when it is found that the petitioner was very much present in Guwahati and in fact had appeared before this court by swearing affidavit and filing bail application, there cannot be any other option than to reject the prayer of the petitioner for condonation of delay and consequential restoration of the suit. The method and manner in which the petitioner has approached the court towards restoration of the suit by condoning the delay leads to the irresistible conclusion that the petitioner took the things for granted. The relevant paragraphs and the prayer of the limitation petition quoted above also are in respect of the petition under Order 39, Rule 2A and hot the suit itself. Thus, strictly speaking there was no prayer for condonation of delay in filing the suit. 22. Order 5, Rule 3 CPC empowers the court to give personal appearance either to the defendant or to the plaintiff. Order 9 CPC deals with the provisions relating to appearance of parties and consequence of non-appearance. Order 9, Rules 2, 3, 5 and 8 CPC provides for dismissal of the suit in the circumstances mentioned therein. Order 9, Rule 12 CPC provides for the consequence of non-attendance of the parties, without sufficient cause shown, defying the order to appear in person. If the party to the suit who has been ordered to appear in person, does not appear in person, or show sufficient cause to the satisfaction of the court for failing so to appear, he shall be subject to all the provisions of the Rules under Order 9 applicable to plaintiffs and defendants, respectively, who do not appear. In the instant case, there is no dispute rather admitted by the petitioner himself that he did not take steps for four consecutive dates and remained absent from the proceeding in the suit. In the instant case, there is no dispute rather admitted by the petitioner himself that he did not take steps for four consecutive dates and remained absent from the proceeding in the suit. On the last date fixed, i.e., 26.5.2005 also he did not appear either in person or through his engaged, counsel, in spite of the earlier order dated 7.4.2005 ordering his personal appearance. Situated, thus, the trial court had no other option than to dismiss the suit. 23. Supervisory jurisdiction under Article 227 of the Constitution of India is exercised for keeping the subordinate courts within the bound of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise its jurisdiction, which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice are occasioned thereby, the High Court may step into exercise its supervisory jurisdiction. In the instant case, I do no find any of the principles underlying exercise of supervisory jurisdiction under Article 227, is involved warranting interference with the impugned order dated 10.5.2006 passed by the learned Civil Judge. The court has exercised its jurisdiction properly and has dealt with the matter taking into account all relevant factors and I do not find any error of jurisdiction in passing the impugned order so as to interfere with the same exercising the supervisory jurisdiction under Article 227 of the Constitution of India. 24. For the reasons, discussions and conclusions, this application under Article 227 of the Constitution of India is devoid of any merit and merits dismissal, which I accordingly do. 25. Civil revision petition is dismissed. Petition dismissed.