JUDGMENT: SANJIB BANERJEE, J. (1). Both appeals are directed against the judgment and decree of September 3,1998 passed in a suit transferred from the Alipore Court to this Court under Clause 13 of the Letters Patent that later took on a counter-claim. The plaintiffs are in appeal against their claim for specific performance of an agreement to sell an immovable property being dismissed and the counter-claim for possession made by the eleventh respondent herein being allowed with a preliminary decree for mesne profits being made. (2). In May, 1987 the plaintiffs and/or their predecessors-in-interest filed the suit before the Third Assistant District Judge at Alipore claiming the following:- "(a) Decree for specific performance of contract of sale by the defendants in favour of the plaintiffs. (b) Fixing a date for payment for balance consideration. (c) Decree directing the defendants to execute and register a proper conveyance of suit property described in the schedule annexed hereunder within a time to be fixed by the learned Court. (d) In default order for execution and registered (sic, registration) on a proper conveyance of suit property under provisions Order 21 Rule 34 of C. P. Code. (e) Possession of the suit property. (f) Injunction. (g) Costs of the suit, and (h) For such other relief or reliefs to which the plaintiffs may be entitled." (3). The schedule to the plaint identified in detail the land measuring 2 cottah, 9 chittak, 30 sq.ft. with a two-storeyed building at premises No. 92, Monoharpukur Road. The plaintiffs claim that a predecessor-in-interest of the defendants purchased the suit land from a person and constructed a two-storeyed building thereon which was let out to the father- in-law of the plaintiffs. According to the plaintiffs, in or about 1978 some of the defendants and/or their predecessor-in-interest agreed to sell the suit property at a consideration of Rs. 90,000/- and each of the heirs of the original owner agreed to execute separate deeds for such purpose. The plaint says that the ninth defendant executed an agreement for sale on August 22, 1978 in favour of the plaintiffs which was duly registered. The plaintiffs claim to have made part payments to the ninth defendant and to certain other defendants and/or their predecessors-in-interest who also executed similar agreements for sale of their undivided individual interests in the property. The plaint says that the ninth defendant executed an agreement for sale on August 22, 1978 in favour of the plaintiffs which was duly registered. The plaintiffs claim to have made part payments to the ninth defendant and to certain other defendants and/or their predecessors-in-interest who also executed similar agreements for sale of their undivided individual interests in the property. The plaint says that the husband of tenth defendant took all steps on behalf of the defendant Nos. 1 to 10 in respect of the transaction and the delay in execution of the conveyance was on account of pending applications for land ceiling and income-tax clearance. As to how the plaintiffs came to know that something was amiss and the immediate cause for the suit, the plaint says:- "18. That the plaintiffs were handed over a copy of plaint of a letters 6.5.1987 suit being Original Suit No. 395 of 87 pending before the Honble High Court at Calcutta by the learned Receiver appointed by the Honble Mr. Justice Ajit Kr. Sengupta. It transpires from the said copy of plaint that the defendant Nos.1 to 10 transferred their right title and interest in the suit property to the defendant No. 11 by a registered Deed of Conveyance dated September 6, 1986." (4). The Alipore suit came to be transferred to this Court in circumstances that the plaintiffs are unable to explain. The plaintiffs insinuate that the transfer and the subsequent conduct of this suit and the judgment and decree passed therein had something to do with eleventh defendant being a lawyer practicing in this Court. The appellants insist that they did not hit upon this line only in the appeal but had expressed a genuine apprehension in this regard before the judgment and decree came to be made. (5). In his Suit No. 395 of 1987, the eleventh defendant in this transferred suit claimed a declaration that he was the lawful owner of the said premises; a further declaration that documents executed by the erstwhile owners in favour of the plaintiffs herein be held as null and void; delivery up and cancellation of such documents; and, consequential reliefs. The suit filed by the eleventh defendant and this transferred suit were directed to be heard analogously or one after the other. The eleventh defendant served a counterclaim in this suit after it landed in this Court. The suit filed by the eleventh defendant and this transferred suit were directed to be heard analogously or one after the other. The eleventh defendant served a counterclaim in this suit after it landed in this Court. Partial oral evidence on behalf of the plaintiff was recorded in or about the year 1988 before a flurry of activities a decade later led to the judgment and decree being passed. (6). In its opening sentence, the judgment of September 3, 1998 announces that both Suit No. 395 of 1987 (Gour Roy Chowdhury v. Hirendra Nath Bhattacharjee and Ors.) and extraordinary Suit No. 36 of 1987 (Smt. Ira Mukherjee and Anr. v. Hirendra Nath Bhattacharjee and Ors.) were being disposed of by the judgment. The judgment proceeds to record the submission on behalf of the plaintiff in Suit No. 395 of 1987 (the eleventh defendant in this suit and the eleventh respondent in the appeals) to the effect that if such partys counter-claim in this transferred suit was allowed he would not advance any argument in his suit and would pray for leave to withdraw such suit. The judgment proceeds to observe that since the learned Judge had heard "both the suits together and treated the evidence given in one suit as evidence in the other suit, it would not be possible for me nor would it be fair on my part to express my mind relating to one suit at one point of time and thereupon to reconsider fresh arguments on behalf of the parties in regard to the other suit and, therefore, I could not accede to the above prayer of the learned Counsel appearing on behalf of the plaintiff in Suit No. 395 of 1987." (7). The judgment then progresses to deal with Suit No. 395 of 1987, records that the plaintiff therein had deposed that he had acquired the suit property under two deeds of conveyance and holds, "there cannot be any dispute that the plaintiff in Suit No. 395 of 1987 is the owner of the premises and all his right of ownership of the premises flows from the conveyances ..." The learned Judge thereafter finds Suit No. 395 of 1987 to be a suit for land, resulting in a direction for the plaint relating to such suit to be returned "to the plaintiffs Advocate for being presented at the appropriate forum,". (8). (8). The claim of the plaintiffs in this transferred suit is then noticed and the following is recorded in such context:- "Although at some stage the plaintiff No.1 deposed in the suit but before conclusion of her examination she refused to appear in Court and in consequence I had to expunge the evidence given by her. Subsequent thereto, the plaintiffs in E.O.S. No. 36 of 1987 have taken no step to have their claims and contentions in the plaint filed in the suit to be proved before me. As a result, I have no other option but to dismiss the said suit and accordingly, E.O.S. No. 36 of 1987 is dismissed." (9). The judgment thereafter proceeds to record and adjudicate on the counter-claim served by the defendant No. 11 in the transferred suit, noticing, in particular, that the counter-claimant had asserted that the father-in-law of the plaintiffs was never a tenant in respect of the said premises nor did the plaintiffs or their husbands ever pay any rent to the defendants or any of them; that in such circumstances the possession of the suit premises by the plaintiffs was illegal and wrongful; that the plaintiffs were "permitted to remain in possession or occupation of the suit property" by the defendant Nos. 1 to 10 and such permission stood "cancelled or revoked" in September, 1986; and, as such the plaintiffs had no right to continue in occupation of the suit premises. (10). The judgment records that the counter-claimant was the only person to depose in the suit and that he had claimed from the witness box that he was the owner of the suit premises and had paid the consideration for purchase thereof. The judgment notes that the assertions of the counter- claimant had not been controverted by the plaintiffs or their husbands. On such basis, the learned Judge concludes as follows:- "... I have got no other option but to hold that the plaintiffs and their respective family members including their father-in-law, Late Haridhan Mukherjee, were in permissive user of the property-in- question and after the same was purchased by Sri Gour Roy Chowdhury, the permission so granted was revoked. If the permission to occupy was revoked by the lawful owner, then the question of persons continuing in possession in utter disregard to such revocation, does not and cannot arise. If the permission to occupy was revoked by the lawful owner, then the question of persons continuing in possession in utter disregard to such revocation, does not and cannot arise. The right to remain in possession having come to an end but still then the persons having continued in possession, there cannot be any other conclusion but to hold that the possession became a possession in trespass." (11). The resultant pronouncement on the counter-claim declares the plaintiffs in this transferred suit and their family members to be trespassers, finds the counter-claimant to be entitled to possession of the suit premises and makes a preliminary decree of enquiry into the mesne profits for the period beginning October 1, 1986 till delivery of possession by the plaintiffs. The counter-claimant also obtained costs of Rs. 10,000/-and a line to the effect that the entirety of the decree except the preliminary decree was final and immediately executable. (12). The plaintiffs preferred three sets of appeals from the judgment and decree of September 3, 1988. The appeals here relate to the decrees passed in this transferred suit. The third of the appeals relates to the order directing return of the plaint in Suit No. 395 of 1987. In these two appeals, the respondent No. 11 had made a statement at the initial stage that neither would the decree of possession be put into execution nor would the enquiry under the preliminary decree be undertaken. The parties submit that there is an order in the appeal from that part of the judgment by which the plaint in Suit No. 395 of 1987 was returned, recording a statement by the eleventh defendant that the plaint would not be presented to the appropriate Court during the pendency of that appeal. (13). The appellants and a supporting respondent submit that it was open to the appellants to either make an application in the -trial Court for recalling the decree of dismissal of their suit together with an application for setting aside the ex parte decree made in the counter claim, or carry the decree in either case in appeal. The appellants say that before their suit was dismissed in default, they ought to have been afforded a chance particularly as oral evidence in support of their claim had been received in part. The appellants say that before their suit was dismissed in default, they ought to have been afforded a chance particularly as oral evidence in support of their claim had been received in part. The appellants submit that the witness on behalf of the plaintiffs whose Examination-in-Chief had not been concluded deserved a notice since the deposition was last taken in December, 1988. The appellants attempt to show that there is nothing in the judgment to indicate that a reasonable opportunity was afforded to the plaintiffs to further their cause or present arguments in support of their claim. The appellants suggest that the learned Judge could not have proceeded to dismiss their suit without first recording a finding to the effect that the plaintiffs had abandoned or chosen not to pursue their claim despite reasonable opportunity. (14). As to the passing of the decree in the counter-claim, the appellants say that it was evident to the learned Judge that no one had appeared to oppose the counter-claim. They say that the recording in the judgment that the counter-claimants assertions had not been dealt with would imply that there was no additional written statement on record dealing with the counter-claim. This, the appellants submit, should have prompted the learned Judge to assess whether the counter-claim had at all been served on the plaintiffs for the plaintiffs obligation to use an additional written statement thereto to arise. The appellants say that it is evident that there was no concern shown to the plaintiffs in their suit being dismissed and in the eleventh defendants counter-claim being decreed merely for the asking. (15). The eleventh defendant says that the underlying submission of the appellants is in continuation of the scurrilous allegations that had been made by the appellants in the stay petition relating to one of these appeals. It is submitted that not only were the appellants aware of the suit and counter-claim being taken up and disposed of, they were represented at the time that judgment was delivered. The eleventh defendant recounts that before the learned Judge an application had been made by the plaintiffs praying that the learned Judge recuse himself from the matter which was not only dismissed but the learned Judge referred the application to a Division Bench to consider whether proceedings in criminal contempt should be launched for the plaintiffs misdemeanour. The eleventh defendant recounts that before the learned Judge an application had been made by the plaintiffs praying that the learned Judge recuse himself from the matter which was not only dismissed but the learned Judge referred the application to a Division Bench to consider whether proceedings in criminal contempt should be launched for the plaintiffs misdemeanour. The eleventh respondent refers to several paragraphs from the stay petition filed by the appellants in one of the appeals. The submission is that the matters that have been referred to in such stay petition should prompt the Court to summarily dismiss these appeals and take note of the fact that the husband of the first appellant was admittedly in Court when the two suits were taken up for final hearing on the relevant day. The eleventh respondent places the following paragraphs from the stay petition in G. A. No. 4670 of 1998:-"10. On 17th August, 1998 the Extra Ordinary suit as well as Suit No. 395 of 1987 came up for hearing and at the first sitting of the Court those suits were mentioned on behalf of the learned Counsel Haradhan Banerjee, Advocate appearing for the Defendant Nos. 11 and 12 in Suit No. 395 of 1987 and Defendant Mos.12 and 13 in Extra Ordinary Suit No. 36 of 1987 and prayed for adjournment on his ground. The Court refused to grant adjournment. 11. Since the prayer for adjournment was refused .the appellants asked the Husband of the Appellant No.1 to watch the matters. That in the midst of evidence in G. D. No. 1000 of 1980 part-hard suit which was appearing as item No. 1 on that days list for hearing (part heard), the Honble Justice Barin Ghosh said in open Court at about 3.10 p.m. that Gour Roy Chowdhurys matters are pending for a long time and the same cannot be taken up for repeated adjournment taken by the defendants and His Lordships also further said that to-day also an adjournment was sought for and was refused. 12. Your appellants state that the Honble Justice Barin Ghosh has said the same in open Court as stated in the (preceding) paragraph at about 3.05 p.m. to 3.10 p.m. and not after the conclusion of the said part heard matter. 13. Your appellants state that Mr. 12. Your appellants state that the Honble Justice Barin Ghosh has said the same in open Court as stated in the (preceding) paragraph at about 3.05 p.m. to 3.10 p.m. and not after the conclusion of the said part heard matter. 13. Your appellants state that Mr. Gour Roy Chowdhury, Barat-Law is not representing these two suits in person and he has his counsels to argue. 14.......................................................................................... 15. Your appellants state that there are several applications pending for disposal, and the Court has straight way refused to dispose of the same before the hearing of the suit. 16. On 18.8. 1998 the said matters (were) taken up for hearing (and) the learned Advocate-on-Record for the appellants submits before the Court that several applications are pending which are necessary to be decided first and the said learned Advocate also drew the kind attention of the Court that the Appeal Court by an order dated 3rd September, 1987 directed the trial Court to decide the point of jurisdiction of this Court to entertain the Suit No. 395 of 1987. His Lordship rejected the said prayer of the appellants and said that the Appeal Courts order cannot be considered and His Lordship will proceed in His Lordships own way. It was also submitted before the Honble Justice Barin Ghosh that the Suit No. 395 of 1987 cannot be said to be a part heard one since no issues were framed. The learned Advocate for the appellants also submits that on yesterday whatever (was) said in open Court by His Lordship (which has been stated in Paragraph-11 of these petition) one of my clients husband i.e. the husband of appellant No. 2 heard the same who informed the same to the appellants. Your appellants after hearing the same requested the learned Advocate appearing for them to submit before the Court that in view of the above circumstances they are apprehending that they may not get justice and requested to pray for release of the suit. The Court after hearing the submission, directed the appellants to file an application to that effect. On 19th August, 1998 the appellants filed the said application. 17. The Court after hearing the submission, directed the appellants to file an application to that effect. On 19th August, 1998 the appellants filed the said application. 17. Your petitioners state that on the prayer of the learned Counsel appearing for the plaintiff in Suit No. 395 of 1987 the Court proceeded with the hearing of the Extra Ordinary Suit No. 36 of 1987 at First leaving aside the earlier suit being Suit No. 395 of 1987 pending. Thus frustrated the appeal Courts order dated 3rd September, 1987 by leaving aside the question of jurisdiction of this Court to entertain that suit. 22. On 24th August, 1998 the said application for release of the suit has been taken up for hearing and after hearing the counsels appearing for the parties rejected the said application by referring the said petition and His Lordships order to the Division Bench taking criminal matters for deciding upon criminal contempt against these appellants. 24. Your appellants state that from 24th August, 1998 the Court started hearing of this suit first and evidences were taken and ultimately on 3rd September, 1998 one judgment was delivered after hearing these two suits analogously." (16). Counsel for the eleventh defendant submits that these statements in the stay petition would go to show that the appellants were aware of what transpired and deliberately chose not to appear before the trial Court. It is submitted that in view of such admitted conduct, these appeals should not have been entertained and the appellants should have been left to take their alternative course before the trial Court to have their claim revived and the decree in the counter-claim set aside. (17). It is too late in the day to suggest that the appeals should not have been entertained. These appeals have been entertained and have now progressed to the stage where they are to be decided on merits. The considerations in an appeal from an ex parte decree are somewhat different from the considerations in an application for setting aside the ex parte decree. Similarly, the tests applied by the appellate Court in an appeal from a decree of dismissal of a suit in default and the tests applied by the trial Court on an application for restoration of the suit, are also distinct. (18). Similarly, the tests applied by the appellate Court in an appeal from a decree of dismissal of a suit in default and the tests applied by the trial Court on an application for restoration of the suit, are also distinct. (18). Contrary to what is recorded in the judgment of September 3, 1998, it was not one of the plaintiffs who had deposed in 1988 but it was the husband of one of the plaintiffs in the transferred suit who had taken to the witness box. There is nothing in the judgment to show that the plaintiffs or the witness whose deposition had not been completed had been given notice of resumption of the hearing of the suit after 10 years and, notwithstanding what has been said in the stay petition, these are not the facts that are recorded in the judgment under appeal. More importantly, there is nothing in the judgment to show that the Court had satisfied itself that the counterclaim had been duly served on the plaintiffs. While it is true that the principle recognised in Order 8 Rule V of the Code of Civil Procedure, 1908 permits a claim or any averment not to be proved in the absence of a specific denial thereof, it does not dispense with the requirement of the Court to satisfy itself that the plaint or the counter-claim had been duly served on the defendant or the plaintiff, as the case may be. (19). It is not necessary to consider in these appeals as to whether upon the plaintiff in Suit No. 395 of 1987 making a conditional prayer for leave to withdraw the suit, it was incumbent on such plaintiff to make the defendants aware of such prayer. It is equally irrelevant in these appeals as to whether the plaint relating to that suit could have been returned without reference to the defendants. But these matters are referred to since they form part of the same judgment which is in appeal. (20). There is nothing that the eleventh defendant has been able to show as to why the partial deposition on behalf of the plaintiff in the transferred suit was directed to be expunged. But these matters are referred to since they form part of the same judgment which is in appeal. (20). There is nothing that the eleventh defendant has been able to show as to why the partial deposition on behalf of the plaintiff in the transferred suit was directed to be expunged. It is one thing to say that oral testimony of a party would not be considered in the absence of such party presenting himself to be cross-examined, and quite another to say that the oral evidence should be expunged. There is nothing in the judgment in support of the finding that the plaintiff No.1 had refused to appear in Court or as to how the refusal of the said plaintiff to come to Court, if at all, was relevant. As aforesaid, the first plaintiff had not examined herself. There is also nothing to show the circumstances leading to the Courts conclusion that the first plaintiff or the plaintiffs had refused to appear in Court. Presumably, the refusal to appear also refers to refusal to be represented. That a person had refused to be represented is a conclusion that has to be drawn from the circumstances. Nothing in the judgment records the circumstances from which such a conclusion could reasonably be drawn. (21). Again, after the learned Judge concluded that the first plaintiff had refused to appear in Court as a consequence whereof her evidence had to be expunged (which is an error on facts as it was the husband of one of the plaintiffs who had climbed the witness box), the learned Judge recorded that "subsequent thereto" the plaintiffs in this transferred suit had taken no steps to prove their claim. It is unclear as to whether the "subsequent" steps were to be taken after the deemed refusal of the first plaintiff (or the relevant witness on the plaintiffs behalf) to appear in Court, or after the expunging of the evidence. In either case, there was nothing that could be done by the plaintiffs after the perceived refusal to appear in Court as the judgment followed immediately upon such perception; and, nothing could have been done by the plaintiffs after the partial oral testimony on their behalf was expunged, for the suit was taken up in the same breath. (22). In either case, there was nothing that could be done by the plaintiffs after the perceived refusal to appear in Court as the judgment followed immediately upon such perception; and, nothing could have been done by the plaintiffs after the partial oral testimony on their behalf was expunged, for the suit was taken up in the same breath. (22). It is the cardinal principle in the adversarial system that a claimant, whether in the plaint or in the counter-claim, is required to prove his case. Dispensation with proof is when there appears to be no scope for doubt in the adversary having either admitted the claim or having chosen not to dispute it despite opportunity. The facts here would not show that it could be enthusiastically perceived in this case that the plaintiffs in this extraordinary suit had no defence to the counterclaim of the eleventh defendant. The plaintiffs version of things was already on record in the plaint and despite the dismissal of the suit in default, the averments could not have been wiped clean or expunged and should have weighed in the adjudication of the counter-claim in this suit. The discretion which is available to Court under Order 8 Rule V of the Code has to be judicially exercised. Even if no reasons need always be given in support of dispensation, the rationale there for must be apparent. This is not a case where the eleventh defendant could have been invited to take the decree that he had claimed without requiring him to prove his claim. (23). A reading of the counter-claim would also reveal that certain legal questions would arise. The judgment does not recognise or address any legal issue. Rules of pleading contained in the Code of Civil Procedure permitting dispensation of proof of facts do not cover questions of law. Additionally, the judgment does not refer to the issues that ought to have been framed long earlier in course of the suit, covering both the claim and the counter-claim. (24). There is also the aspect of transparency, and the indispensable need for a conscious effort to instill confidence, in the system. Additionally, the judgment does not refer to the issues that ought to have been framed long earlier in course of the suit, covering both the claim and the counter-claim. (24). There is also the aspect of transparency, and the indispensable need for a conscious effort to instill confidence, in the system. When the plaintiffs had made an application praying that the learned Judge not take up or continue with the matter -a plea that has to be frowned upon unless exceptional facts are brought leading to an inescapable inference and justifiable apprehension, for a litigant cannot choose his judge - even upon dismissal of the request, the matter called for a more delicate treatment to reassure the plaintiffs of the fairness of the process. The rival claims of two sets of parties were on trial and not the recalcitrance of these audacious plaintiffs in demanding that the matter be removed to a -Court of their convenience. The cliched but timeless maxim that justice must not only be done but also be seen to be done is at the very heart of any credible judicial system that needs to be uncompromisingly adhered to. (25). On the grounds aforesaid the judgment and decree cannot be upheld. The decree dismissing the extraordinary suit is set aside. The decree allowing the counter-claim is also set aside. Both the claims in the suit and the counter-claim are remanded to the trial Court to be tried afresh. All the applications in the two appeals stand disposed of. There will be no order as to costs. Urgent certified Photostat copies of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.