Research › Search › Judgment

Calcutta High Court · body

2008 DIGILAW 176 (CAL)

Zahirunessa Bibi v. Sudama Majhi

2008-02-08

MANIK MOHAN SARKAR

body2008
Judgment :- (1.) THIS application under Article 227 of the Constitution of India has been preferred against order No. 85 dated 18. 7. 2006 under Order 9 Rule XIII of the code of Civil Procedure by the learned Civil Judge (Junior Division), 1st Court at Serampore in Misc. Case No. 35 of 1999 (arising out of Title Suit No. 344 of 1994). (2.) IN short, petitioners projected their case in the way that originally a suit for eviction was filed against the opposite party No. 1 together with a prayer for arrear rent valued at Rs, 1,620/-, by Sk. Abdus Salam (since deceased) who was the predecessor-in-interest of the present petitioners. Since the defendant-opposite party No. 1 defaulted in payment of rent, subsequent by an agreement he agreed to leave the premises by December, 1993 and as he did not do so, original plaintiffs sent a notice claiming vacant possession of the suit premises, through his Advocate on 26. 9. 1994 and the said notice was also ignored by the defendant-opposite party No. 1 and so the suit being Title suit No. 344 of 1994 was filed. Though defendant-opposite party No. 1 initially appeared, but for his default, the suit was ordered to be heard ex parte by the learned trial Court and subsequently, the suit was heard and it was decreed ex parte with a direction upon the defendant-opposite party No. 1 to deliver vacant possession within three months from the date of decree on 28. 5. 1999. The present petitioner being substituted plaintiffs, filed Execution Case No. 14 of 1999 and was processing the Execution Case even by applying for getting order thereto for police help. Subsequently, the defendant filed application under Order 9 Rule XIII read with Section 151 of the Code of Civil Procedure together with an application under Section 5 of the Limitation Act for setting aside the said ex parte decree of his eviction and the said application was registered as Misc. Case No. 35 of 1999. Subsequently, the defendant filed application under Order 9 Rule XIII read with Section 151 of the Code of Civil Procedure together with an application under Section 5 of the Limitation Act for setting aside the said ex parte decree of his eviction and the said application was registered as Misc. Case No. 35 of 1999. Petitioners alleged that the opposite party No. 1 with bad intention to cause delay in the execution of the decree and also in the whole process, has filed the said application for setting aside the ex parte decree without filing any appeal against the said decree and thereby the opposite party went through a process of wasting time unnecessarily depriving the petitioners-decree holders from taking possession of the suit premises on a due decree of the Court. The petitioner-decree holders, as directed by the learned trial Court, filed their written objection by way of showing cause in the said Misc. Case which was subsequently taken up for hearing and on the basis of evidence adduced by the opposite party No. 1 in the said misc. Case No. 35 of 1999, the learned Trial Judge allowed the said application under Order 9 Rule XIII of the Code of Civil Procedure on 18. 7. 2006 and set aside the ex parte decree passed in Title Suit No. 344 of 1994 and restored the suit subject to payment of Rs. 800/- as cost by 31. 7. 2006. Petitioners claimed that while opposite party No. 1 defendant moved before the same court for setting aside the ex parte decree, only to delay the process of justice intentionally, the learned Trial Judge passed the impugned order without applying his mind judicially since all the doctors who treated the defendant-opposite party No. 1 for long eleven months for his low blood pressure were not examined as witnesses and set aside the ex parte decree at the stage when the same was put into execution and the present petitioners, substituted as plaintiffs in the suit, already deposited cost for police help as ordered by the court earlier, for execution of the decree. (3.) MR. (3.) MR. Hafizur Rahaman, the learned Advocate for the petitioners submitted further that though the opposite party No. 1 who obtained the order for setting aside the ex parte decree, might have gone to the higher Court with appellate jurisdiction, by preferring an appeal against the ex parte decree passed in the suit concerned since the suit was heard on merit on presentation of evidence, oral and documentary, from the side of the present petitioners as substituted plaintiffs therein and as the learned trial Court passed the order on ex parte decree on consideration of merit of the suit concerned though only in respect of the case made out by the present petitioners as plaintiffs therein, the proper avenue for the opposite party No. 1 should have been prefer an appeal against the said ex parte decree and not by an application under Order 9 Rule XIII which has been made herein. Mr. Rahaman spelled the act of the opposite party No. 1 in filing application under Order 9 Rule XIII for setting aside the ex parte decree, has an intention to cause the delay in the act of getting vacant possession of the disputed premises by evicting the opposite party No. 1 therefrom. It is, further, submitted by Mr. Rahaman that the learned trial Court also should have refused the application of the opposite party No. 1 since it was presented at a time when the present petitioner have already put the ex parte decree into execution for getting vacant possession of the disputed premises in view of the ex parte decree and when it proceeded so far as the present petitioners also put the cost of the police help by treasury challan. (4.) MR. Atanu Biswas, learned Advocate for the opposite party No. 1 submitted that the opposite party No.1 cannot be prevented from making application under Order 9 Rule XIII for setting aside the ex parte decree since the judgment debtor or the present opposite party No. 1 had two options for relief against the ex parte decree and it is by way of preferring an appeal to the higher forum or by filing application under Order 9 Rule XIII before the Court which passed the ex parte decree. It is, further, submitted that the application for setting aside the ex parte decree was duly contested by the present petitioners and on production of the necessary materials before the learned trial Court by way of evidence or otherwise the order was passed in favour of the opposite party No. 1 by setting aside the ex parte decree and the present opposite party No. 1 was given with an opportunity to contest the suit itself. It is, further, submitted Mr. Biswas that the order passed under Order 9 Rule XIII was not a final disposal of the suit by learned trial Court but it was only to extend an opportunity to the present opposite party No. 1 to contest the suit and to defend his eviction from the suit premises in accordance to law. (5.) LEARNED Advocate for the petitioner, in course of his submission, has submitted that the learned trial Court was not proper in scanning the evidence of the defendant-opposite party No. 1 in the said proceeding under order 9 Rule XIII and it was done in a very light manner and the present petitioners were prevented from having the benefit they obtained by getting the ex parte decree of eviction of the opposite party No.1. (6.) IT is fact that an ex parte decree can be challenged either by an appeal before the appellate forum or by an application under Order 9 Rule XIII and this preference of option cannot be questioned since the statute has provided these opportunities in this way. However, there is some restriction no doubt in filing application under Order 9 Rule XIII where there had been an appeal against a decree passed ex parte and the said appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal. This has been provided in "explanation" to Order 9 Rule XIII. (7.) FURTHER, the revisional Court has got only the jurisdiction to investigate as to whether there has been any irregularity or illegality in passing the order under challenge or whether the Court passing such impugned order has acted beyond his jurisdiction or by using an improper jurisdiction. This has been provided in "explanation" to Order 9 Rule XIII. (7.) FURTHER, the revisional Court has got only the jurisdiction to investigate as to whether there has been any irregularity or illegality in passing the order under challenge or whether the Court passing such impugned order has acted beyond his jurisdiction or by using an improper jurisdiction. (8.) IN the present matter, it is found that the learned trial Court has given an opportunity of hearing both the parties on the application under Order 9 Rule XIII and passed the order of setting aside the ex pane decree and extended an opportunity to the present opposite party No. 1 as defendant therein to contest the suit. It is the normal procedure that a suit or a dispute should be disposed of by giving opportunities to both the parties to be heard or to place their respective cases before the Court for proper adjudication and if it is an one-sided affair, proper adjudication of justice is really absurd there. (9.) IT is fact that the original suit was filed long back in the year 1994, yet the delay caused in passing the ex pane decree was not an one-sided affair since the present petitioners can be held sufficient responsible for the delay since the decree was passed in 1998. Further. I do not find any irregularity or illegality in the act of the learned Trial Judge specially, that of the present opposite party No. 1 since the application was filed by him before the learned trial Judge under Order 9 Rule XIII. I also do not find any act of the learned trial Judge which is beyond his jurisdiction or in the mistaken act of application of jurisdiction or otherwise in passing the said order. It is also fact that when the present opposite party No. 1 has come before the Court for a justice of being heard of his case in the suit, I think the opportunity given to him by passing the order for setting aside the ex pane decree by the learned trial court should be sustained. (10.) IN such circumstances, I do not find any merit in the present application and so the present application under Article 227 is hereby rejected. (10.) IN such circumstances, I do not find any merit in the present application and so the present application under Article 227 is hereby rejected. (11.) HOWEVER, since the suit is old one, the learned trial Court is directed to dispose of the same at the earliest opportunity with giving any unnecessary adjournment. I pass no order as to costs.