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2009 DIGILAW 188 (CAL)

Anchal Kanti Sahoo v. Parimal Guria

2009-03-06

PRASENJIT MANDAL

body2009
Judgment : PRASENJIT MANDAL, J. (1) These two applications are disposed of by this common judgment as they arose out of the same matter. (2) By a composite order dated 05.03.2008, the learned Civil Judge disposed of both the two J. Misc Cases No.35 of 2004 and 36 of 2004. The defendants/petitioners challenged the said composite order dated 05.03.2008. (3) The J. Misc. Case No.35 of 2004 was over an application under Order 22 Rule 9 of the Code of Civil Procedure and the other J. Misc. Case No.36 of 2004 arose out of an application under Order 47 Rule 1 of the C.P.C. In J. Misc. Case No.35 of 2004, the petitioners of that Misc. Case contended that the opposite party no.3 of the misc. case died on 07.08.2003 and a petition for substitution dated 06.11.2003 was filed which was rejected by that Court in J. Misc. Case No.32 of 2002 on the ground that the said J. Misc. Case No.32 of 2002 abated as a whole. So the prayer for substitution of legal heirs of the deceased opposite party no.3 along with an application under Section 5 of the Limitation Act was also filed which was rejected by the order impugned. (4) The other J. Misc. Case No.36 of 2004 was filed contending that the petition dated 06.01.2003 was rejected by that Court holding that the J. Misc. Case abated as a whole which could not be. So the prayer for review was filed by the said Misc. Case. (5) On hearing the submissions of the learned Advocates of both the sides and on perusing the materials on record, I find that the composite order was cryptic. The learned Civil Judge observed that the fate of J. Misc. Case No.35 of 2004 was solely dependent on the fate of J. Misc. Case No.36 of 2004. Similarly, the learned Civil Judge in disposing of the other J. Misc. Case No.36 of 2004 simply recorded that unless there was any discovery of new and important matters or evidence, review application could not be allowed. This observation is nothing but a part of the Order 47 Rule 1 of the C.P.C. The learned Judge did not consider the factual aspect with regard to review of the order. Such observations, I hold, are not sufficient for sustaining of the same. This observation is nothing but a part of the Order 47 Rule 1 of the C.P.C. The learned Judge did not consider the factual aspect with regard to review of the order. Such observations, I hold, are not sufficient for sustaining of the same. The learned Civil Judge did not record any reason why he actually dismissed the two J. Misc. Cases with reference to the fact in dispute. So the order in J. Misc. Case No.36 of 2004 cannot be sustained. So far as the other J. Misc. Case No.35 of 2004 is concerned, in order to entertain an application under Order 22 rule 9 of the C.P.C. the Trial Court was required to give sufficient opportunity to the petitioners of that Misc. Case to adduce evidence why they were prevented by any sufficient cause from taking steps earlier. But I do not find that the learned Civil Judge had given sufficient opportunity to the petitioners to place materials for setting aside the abatement. So the impugned order cannot be sustained. (6) After close of argument on behalf of both the sides, Mr. Nibaran Kr. Das, learned Advocate for the opposite parties, filed two copies of the decisions reported in AIR 1993 Allahabad 237 and AIR 1973 Cal 278 and submitted that an appeal lies against the order of dismissal of the application under Order 22 Rule 9 along with Section 5 of the Limitation Act. This was filed on the day before the date of delivery of judgment. No doubt, as per Order 43 Rule 1(k) an appeal lies against an order under Order 22 Rule 9 refusing to set aside the abatement or dismissal of the suit. Such decisions have been referred to in absence of the other side and so it should not be considered. After all, I am not disposing of any application under Order 22 Rule 9 of the C.P.C. arising of a suit but from a misc. case which arose out of the suit. The learned Trial Court did not make any observation whether there was any sufficient ground for allowing or refusing of the said application. Under the circumstances, I am determined to remand the matter for decision afresh by the learned Trial Judge. Such exercise of power can well be done under Article 227 of the Constitution of India. Therefore, I hold that the two decisions referred by Mr. Under the circumstances, I am determined to remand the matter for decision afresh by the learned Trial Judge. Such exercise of power can well be done under Article 227 of the Constitution of India. Therefore, I hold that the two decisions referred by Mr. Das should not be taken into consideration in deciding the two applications. (7) Accordingly, the order impugned is hereby set aside with order of remand to decide those two J. Misc. Cases afresh in accordance with law and as per above observations. Accordingly, the learned Civil Judge shall dispose of the said two J. Misc. Case Nos.35 of 2004 and 36 of 2004 by passing speaking orders within three months from the date of communication of this order. (8) With the above orders, the two applications are allowed. (9) There will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.