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2008 DIGILAW 692 (CAL)

Gouri Basu v. Durga Nath Bhattacharjee

2008-07-15

PARTHA SAKHA DATTA

body2008
JUDGMENT The order dated 30th March, 2007 passed by the learned Civil Judge, (Senior Division), 8th Court, Alipore, in Misc. Appeal No. 241 of 2005 and affirming the order dated 20th April, 2005 passed by learned Civil Judge, (Junior Division), 1st Court, Alipore in Misc. Case No. 62 of 1997 dismissing the petitioners’ petition under Order 9 Rule 13 C.P.C. is under challenge. 2. I have heard Mr. Aniruddha Chatterjee, learned Advocate appearing for the petitioners and Mr. S. Chakraborty, learned Advocate for the opposite parties. 3. The opposite party Nos. 1, 2 and 3 filed Title Suit being No. 107 of 1989 before the learned 1st Munsif at Alipore praying for recovery of Khas possession of the property on the ground of default and reasonable requirement of the suit premises for the plaintiffs. The suit was earlier decreed ex parte on 19th February, 1991 and the present petitioner filed a Misc. Application under Order 9 Rule 13 C.P.C. in Misc. Case No. 33 of 1991 and the suit was restored by allowing the application by an order dated 4th July, 1992. Then again when the suit came up for hearing the petitioner as defendant did not appear as the suit was decreed ex parte on 26th July, 1996 and one year five months after the ex parte decree was passed, precisely on 10th December, 1997 the petitioner-defendant filed a petition under Misc. Case No. 62 of 1997 for restoration of the suit by setting aside the ex parte decree. It was contended in the application under Order 9 Rule 13 C.P.C. that the defendants could not contact the learned Advocate and follow the date of suit, that the suit was decreed ex parte on 26th July, 1996, that the defendants received a notice to show-cause upon an application under Order XXI Rule 97 C.P.C. from the Court on 28th November, 1997, that the defendants’ Advocate could not take any steps in the suit on 26th July, 1996 since he was suffering from illness, that accordingly the ex parte decree might be set aside. 4. 4. This petition was contested by the decree-holder in the learned Trial Court below and upon recording of the evidence of witnesses the learned Trial Court found that from evidence it transpired that the p0titioner knew the date of ex parte hearing and the plea of lawyer's illness did not found favour with the learned Trial Court and further no steps were taken between the date of ex parte decree and the date of the receipt of the notice of the application under Order 21 Rule 97 C.P.C. in connection with the execution case. Learned Trial Court found that the defendants petitioners knew fully well of the date of the ex parte hearing of the suit but did not take any step and after a lapse of long time an application under Order 9 Rule 13 C.P.C. was filed which was barred by limitation. This finding was affirmed by the learned Civil Judge (Senior Division) 8th Court, Alipore holding that no application under Section 5 of the Limitation Act was filed before the Court below for condonation of delay and even if it be accepted that the petitioner No. 1 was ill there was no explanation as to why no steps could be taken by other petitioners who were not, incapacitated. 5. Mr. Chatterjee learned Advocate appearing for the petitioners submitted that since the petitioners desire to contest the suit, a chance might be given to them and the mere delay in making the application for setting aside ex parte decree could not be a reason for not setting aside the ex parte decree. My attention has been drawn to the decision of the Supreme Court in G.P. Srivastava v. R.K. Raizada & Ors., reported in 2000 (3) SCC 54 wherein Their Lordships have favoured liberal consideration of an application under Order 9 Rule 13 C.P.C. provided non-appearance of the defendant is not mala fide or intentional. 6. My attention has been drawn to the decision of the Supreme Court in G.P. Srivastava v. R.K. Raizada & Ors., reported in 2000 (3) SCC 54 wherein Their Lordships have favoured liberal consideration of an application under Order 9 Rule 13 C.P.C. provided non-appearance of the defendant is not mala fide or intentional. 6. Learned Advocate for the opposite parties herein submitted that the application itself was a mala fide one and the conduct of the party would show that they avoided to contest the suit and with intention to drag the suit for any number of years they once allowed the suit to be decreed ex parte some time in the year 1991, and when on their application it was restored to its original file the petitioners played the same tricks and allowed the suit to be decreed ex parte on 26th July, 1996 and after a lapse of one year four months they came up with an application under Order 9 Rule 13 C.P.C. without explaining the delay and it is not the fact that they did not know of the suit or that they did not know of the date of hearing of the suit. My attention has been drawn to the decision of the Supreme Court in Manick Chand Nandy v. Debdas Nandy, reported in AIR 1986 SC 446 where Their Lordships held that the High Court cannot, however, function as a Court of First Appeal so far as the assessment of evidence is concerned and substitute its own finding for those arrived at by the subordinate Court unless any such finding is not in any way borne out by the evidence on record or is manifestly contrary to evidence or so palpably wrong that if allowed to stand would result in grave injustice to a party. This was the decision in connection with an application under Order 9 Rule 13 C.P.C. Another decision in Lachhman Dass v. Santokh Singh, reported, in 1995 (4) SCC 201 has been cited wherein Their Lordships while discussing the scope of Sections 107 and 115 of the C.P.C. held that when two authorities below thoroughly examined and appreciated the evidence of the parties and recorded a finding on evidence the High Court cannot ignore the concurrent findings based on evidence on record and disturb them. It is submitted by the learned Advocate for the opposite parties that under Article 123 of the Limitation Act, 1963 the limitation for making an application to set aside an ex parte decree or to rehear the appeal decreed or hearing ex parte is thirty days but here in the instant case, no application for condonation of delay has been made, and under Section 3 of the Limitation Act, any suit, appeal or application filed after the statutory period of limitation are liable to be dismissed in limine if application under Section 5 of the Limitation Act is not filed for condonation of delay. 7. The records reveal that it is not the case of the petitioners that they did not know the date of hearing of the suit, which was fixed on 26th July, 1996. They had entered appearance in the suit long ago and after the suit was once restored to its original file the learned Trial Court proceeded to the hearing of the suit but as the defendants-petitioners did not appear, 26th July, 1996 was the date fixed for ex parte hearing. It is not the case of the petitioners that their lawyer did not inform them of the date of ex parte hearing. It has come out from the evidence of P.W.1, Smt. Gouri Basu that she knew of the date of ex parte hearing but on that date because of illness of the lawyer and of his mother no steps were taken. Even prior to receipt of notice of an application under Order XXI Rule 97 C.P.C. no contact was made with the lawyer. No document was tendered before the learned Trial Court on account of illness of P.W.1's mother or of the lawyer. The illness of P.W.1's mother was not convincing to both the Courts below as there were number of petitioners all of whom were not admittedly sick on the very date of hearing. Even if it is assumed for the sake of argument that for any bona fide reason steps could not be taken on 26th July, 1996, it has not been explained why the petitioners allowed the time to pass by for a period of one year four months from the date of ex parte decree. Even if it is assumed for the sake of argument that for any bona fide reason steps could not be taken on 26th July, 1996, it has not been explained why the petitioners allowed the time to pass by for a period of one year four months from the date of ex parte decree. Learned Advocate for the opposite parties submitted that even an oral application for condonation of delay can be filed and in support of his submission the decision in State of West Bengal & Ors. v. Nripendra Nath Banerjee & Ors., reported, in AIR 1992 Cal. 179 has been cited. This decision stands on a different footing. The State of West Bengal was the appellant and there was eighty days delay in preferring the appeal. According to Their Lordships application for delay can be condoned even on an application filed later. Here application for delay was filed only belatedly and having regard to the fact that the grounds of delay were sufficient, the appeal was admitted and Their Lordships held that where Government is the appellant a different approach might be necessary. Here no application for condonation of delay was filed and the application under Order 9 Rule 13 C.P.C. does not indicate that the petitioners were unaware of the date of hearing or that they did not know until receipt of the notice of an application under Order 21 Rule 97 C.P.C. of the passing of the ex parte decree. Such was not the case of the petitioners and, in fact, a grossly time barred application was filed with no prayer for condonation of delay and in evidence also the delay could not be explained and sufficient cause was not shown at all as to why they could not appear on the date of hearing. 8. In this connection reference can be made to a decision of the Supreme Court in Mahabir Singh v. Subhash & Ors., reported in 2008 (1) CLJ (SC) 67 where it was held that when the respondent had knowledge of the passing of the ex parte decree long ago, the application for setting aside the decree is barred by limitation. Hence in the instant case of ours it has clearly transpired that the petitioners had knowledge of the date of ex parte hearing and of the decree as well. Hence in the instant case of ours it has clearly transpired that the petitioners had knowledge of the date of ex parte hearing and of the decree as well. Where both the learned Courts below have come to a concurrent finding of fact on the basis of evidence and the finding cannot be said to be perverse or unjust, it is not proper for this Court upon an application under Article 227 of the Constitution of India to disturb the finding. 9. Accordingly, the application is dismissed. The order impugned is affirmed. 10. A copy of this order shall be sent to the learned Trial Court immediately. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties, as expeditiously as possible.