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2006 DIGILAW 719 (GAU)

Oriental Bank of Commerce v. Queens Palace

2006-08-07

H.N.SARMA

body2006
JUDGMENT H.N. Sarma, J. 1. The challenge made in this revision petition is an order dated 7.4.2004 passed by the learned Civil Judge (Sr. Division) No. 1. Guwahati, in Misc. (J) Case No. 47/2002 arising out of Title Suit No. 39/95. By the impugned order, the prayer made by the plaintiff/petitioner to restore the suit which was dismissed for default and not for taking necessary steps for issuing summon in a substituted manner by publishing in the newspaper on the date fixed was rejected refusing to readmit the suit in exercise of power under Order 9, Rule 4, CPC. 2. The plaintiff/petitioner filed the aforesaid T.S. No. 39/95 against the respondents for realization of a sum of Rs.1,11,122.10, for sale of mortgaged property mentioned in Schedule A to the plaint for realization of the dues of the plaintiff payable by the defendant. The suit was filed on 4.3.1995 and the learned trial court admitted the plaint on 6.3.1995. The summon of the suit could not be served on the defendant in spite of issuance of several notices by registered post and the registered envelopes were returned by the postal authority with the endorsement "not known" or "not found". Ultimately, the summon was directed to be served by publishing in the newspaper vide order dated 10.8.2001. The plaintiff having prayed for times to publish the summon by publishing in the newspaper, the court vide order dated 24.5.2005 fixed 6.5.2002 as the last date for service of summon by publishing in the newspaper. On 6.5.2002, the plaintiff was found to have absent without any steps and accordingly, the suit was dismissed for default and not taking steps vide the impugned order dated 6.5.2002. 3. Thereafter, the plaintiff filed an application under Order 9, Rule 4, CPC, read with Section 151, CPC for restoration of the suit to file by setting aside the order of dismissal. The sole ground that was taken in the aforesaid application for restoration is that although the suit was fixed on 6.5.2002, no such entry was made in the diary of the conducting advocate of the plaintiff/petitioner and, hence, steps could not be taken by publishing of the notice in the newspaper. The Branch Manager of plaintiff-Bank verified the said application. The sole ground that was taken in the aforesaid application for restoration is that although the suit was fixed on 6.5.2002, no such entry was made in the diary of the conducting advocate of the plaintiff/petitioner and, hence, steps could not be taken by publishing of the notice in the newspaper. The Branch Manager of plaintiff-Bank verified the said application. The said statements were verified to be true to the knowledge and information of the verifier on this application, the learned trial court vide order date 10.6.2002 directed to issue notice to the defendants to show cause. The plaintiff/petitioner having taken steps for issuance of notice by registered post on the respondents, the court awaited for return of the A/D card till 23.9.2002 and thereafter, till 4.12.2002 and on 29.1.2003, the learned trial court passed an order that A/D card has not been returned and directed to publish notice in "The Assam Tribune" on 13.3.2003. It is not understood as to why such an order was passed by the learned trial court suo motu which amounts to a direction for substituted service under Order 5, Rule 19A(2), CPC, disclosing any reason or without any prayer therefor. It appears that the decision of directing to publish notice in "The Assam Tribune" is not in consonance with the provisions of law and the statutory provision empowering such an action. Admittedly, the plaintiff issued such notice in the "The Assam Tribune" dated 4.3.2003 in the Misc. (J) Case, but in fact, the said notice which was published in the newspaper is not the notice in terms of the order of the court. But this time the defendant appeared on 10.3.2003 and prayed for time to file objection. The defendant filed the objection on 5.3.2003. The defendant in reply to the para 3 of the petition which relates to non-entry of dates of the case in the diary of the conducting advocate, has not denied the same. The matter was heard by the learned trial court on 6.4.2004 and vide order dated 7.4.2004 passed the impugned order rejecting the prayer made by the plaintiff/petitioner. 4. While passing an order under Order 9, Rule 4, CPC, the learned trial court is required to consider in the matter of restoration of the suit as to whether there were sufficient causes for non-appearance of the plaintiff. 4. While passing an order under Order 9, Rule 4, CPC, the learned trial court is required to consider in the matter of restoration of the suit as to whether there were sufficient causes for non-appearance of the plaintiff. In the instant case, the impugned order discloses that the learned trial court put much emphasis on the objection raised by the defendant, more particularly, regarding the negligence of the plaintiff in not taking steps and the application not having properly verified or not having supported by any affidavit, the learned trial court held that the plaintiff was negligent in taking proper steps for issuance of summon on the defendants. By referring to the earlier orders, the learned trial court also noted that the plaintiff did not produce the diary of the advocate as a proof of non-entry of the case on 6.5.2002. In fact, the defendant in his application has not denied the said assertion. It is also a principle of law that in a hotly contested matter, such a petition is not to be dismissed or rejected for defect in verification or affidavit without giving opportunity to rectify the same. That was also not done in the instant case. The learned trial court on perusal of the order-sheet also found the plaintiff to be negligent in taking steps which, in fact, influenced the mind of the learned trial court in refusing the relief, but the same is not found to be wholly correct as per record of the case and, thus, went beyond the provisions of Order 9, Rule 4, CPC. In an application, praying for restoration of the suit and in consideration of the same, the court is to see and consider as to whether the plaintiff has been able to show sufficient cause or not for appearance on the date fixed for hearing. It is seen that the learned trial court has exercised the jurisdiction illegally and with material irregularities by adverting to earlier default, which is not a condition precedent in deciding an application under Order 9, Rule 4, CPC. 5. On perusal of the petition I find that the plaintiff has been able to show sufficient cause of non-appearance on the date fixed. That apart, the plaintiff also should not be allowed to suffer in case of default of his counsel, if any. 6. 5. On perusal of the petition I find that the plaintiff has been able to show sufficient cause of non-appearance on the date fixed. That apart, the plaintiff also should not be allowed to suffer in case of default of his counsel, if any. 6. In view of the aforesaid discussions, I find that the learned trial court has committed illegality and acted with material irregularities in passing the impugned order and, hence, the same is set aside and quashed. 7. Since both the parties have appeared in this court they are directed to appear before the learned trial court on 28.8.2006 on which date the learned trial court will issue and pass necessary orders regarding the further course of action towards disposal of the suit. The suit of the plaintiff stands restored to file and it is to be heard on merits. Further, it would not be necessary to issue any summon to the defendants in the suit as they have been directed to appear on the day mentioned above. Registry is directed to transmit the LCRs forthwith. 8. It is, therefore, directed that since the suit is an old one, the learned trial court shall dispose of the same as expeditiously as possible.