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2009 DIGILAW 391 (GAU)

Union of India v. J. A. Brothers

2009-06-05

A.C.UPADHYAY

body2009
JUDGMENT A.C. Upadhyay, J. 1. This is an appeal filed under Rule 29 of the Rules of Administration of Justice and Police in Nagaland read with Order XLIII, Rule 1(d) of Section 104 of CPC against the impugned order dated 27.8.2008 passed by Addl. District and Session Judge, Dimapur, by which the application filed by the appellants, Union of India represented by the N.E Railways, under Order IX, Rule 13 of CPC for setting aside ex-parte decree passed in Suit No. 15/2007 was rejected. 2. Heard Mr. B.N. Sarmah, learned Counsel for the appellant and Mr. M. Wabang, learned Counsel appearing on behalf of the respondents. The facts leading to the filing of this appeal may be narrated in brief as follows: The respondents filed a Civil Suit No. 15/2007 on 16.8.2007 before the learned Addl. Deputy Commissioner (J) Dimapur, Nagaland against the appellant, Union of India for recovery of Rs. 39,52,012/- with interest at the rate of 18% RA. by way of damages in respect of Railway contract. After issuance of process, the suit was fixed on 28.9.2007 for filing of written statement by the defendants/appellants. On 28.9.2007, the learned Addl. Deputy Commissioner (J), Dimapur, passed two consecutive orders and accordingly fixed the matter on 30.10.2007 without referring the purpose for which the case was fixed. The suit was filed by Shri Ram Kawal Prasad as attorney holder on behalf of M/s J.A. Brothers. However, the principal plaintiff in the suit, Mr. James Akham, personally appeared before the learned Court below and stated that the Power of Attorney alleged to have been executed by him was not executed out of his free consent. It was further alleged that the consent of the principal plaintiff was obtained by attorney, Shri Ram Kawal Prasad by coercion and criminal intimidation at gun point. The principal plaintiff by his letter dated 29.10.2007 prayed for dismissal of the suit. However, the learned Addl. Deputy Commissioner (J) by his order dated 31.10.2007 granted time to the principal plaintiff and the attorney to sort out their differences and submit report thereof. 3. On 7.2.2008 in presence of both parties Misc Case was fixed for appearance and orders on 11.3.2007. Upon hearing the principal plaintiff the case was reserved for orders without fixing a date. Deputy Commissioner (J) by his order dated 31.10.2007 granted time to the principal plaintiff and the attorney to sort out their differences and submit report thereof. 3. On 7.2.2008 in presence of both parties Misc Case was fixed for appearance and orders on 11.3.2007. Upon hearing the principal plaintiff the case was reserved for orders without fixing a date. On 29.4.2008 a petition was filed by M/s J.A. Brothers stating therein that the principal plaintiff and Attorney holder amicably settled their difference and prayed the Court to allow the Attorney holder to continue the case, however, no notice of such report of compromise was given to the defendants/appellants Union of India. Suddenly, on 15.5.2008 without ascertaining whether the defendant/appellant got notice of the date so fixed by the Court or not, learned Court below fixed 15.5.2008 for submission of written statement. Obviously, the defendant was absent as he did not get notice of the date so fixed by the learned Court. The learned Addl. District and Session Judge, thus, without ascertaining the service of notice interestingly fixed the date of hearing immediately on the next date i.e. 16.5.2008 and proceeded to dispose of the matter even in the absence of the defendant and thus decreed the suit on 20.6.2008 and directed the defendant/appellant, Union of India, to deposit Rs. 19,52,012/- within a period of 30 (thirty) days from the date of impugned judgment and order. 4. The appellant filed an application under Order IX, Rule 13 of CPC in the Court of learned Addl. District Judge, Dimapur, on 17.7.2008 for setting aside ex parte decree, which was also registered by the office by giving registration number 61/08. The learned Addl. District Judge, Dimapur, was on leave prior to filing of the petition, as such, as soon as the learned Addl. District Judge resumed duty, the petition was put up before him by the office for necessary order on 22.7.2008. However, by impugned order dated 27.8.2008, the learned Addl. District Judge, Dimapur, held that the petition for setting aside ex-parte judgment and decree dated 20.6.2008 is barred by limitation and accordingly dismissed it. 5. The learned Counsel for the appellant contended that the petition for setting aside ex-parte decree was filed on 17.7.2008 in the Court of the learned Addl. District Judge, Dimapur. District Judge, Dimapur, held that the petition for setting aside ex-parte judgment and decree dated 20.6.2008 is barred by limitation and accordingly dismissed it. 5. The learned Counsel for the appellant contended that the petition for setting aside ex-parte decree was filed on 17.7.2008 in the Court of the learned Addl. District Judge, Dimapur. However, the Presiding Officer of the Court was himself on leave prior to 17.7.2008 till the end of the 3rd week of the month, as such, to save the period of limitation the petition was filed in the Office on 17.7.2008 and it was also registered as Civil Misc Case No. 61 of 2008 on the same day. 6. The learned Counsel for the appellant submitted that even in the absence of the Presiding Officer of the Court, either on leave or otherwise, a suit/proceeding or a petition, may be presented in the office of the Court and the date of such presentation in the office of the Presiding Officer within time, saves the period of limitation, and limitation do not run against the applicant for the absence of the Presiding Officer of the Court. However, upon going through the impugned order, it appears that the learned Addl. District Judge, Dimapur, while rejecting the petition on the ground of limitation, took the stand that the signature of the Presiding Officer appeared to have been given on the body of the Misc. Application No. 61/08 only on 22.7.2008 and did not take into consideration the date of presentation of the Misc Case No. 61/08 in his office. Learned Court below further observed that there was no practice and procedure of presenting and filing of plaint or petition in the Court nor there was any circular or order issued by the Presiding Officer to receive or register any case in his absence. This stand of the learned Addl. District Judge, Dimapur, in not allowing filing of any plaint or petition in his office for registration during his absence in the office either on leave or otherwise is an arbitrary and illegal action. Furthermore, not counting the period during the absence of the Presiding Officer, in reckoning the period of limitation is not permissible under the law. Learned Court below committed illegality in calculating the period of limitation by not counting the date i.e. on 17.7.2008 on which the Misc. Furthermore, not counting the period during the absence of the Presiding Officer, in reckoning the period of limitation is not permissible under the law. Learned Court below committed illegality in calculating the period of limitation by not counting the date i.e. on 17.7.2008 on which the Misc. Case No. 61 of 2008 was filed in his Office for setting aside ex-parte order. On the top of it, in this case, another aspect of the matter should not have been lost sight by the Presiding Officer, the suit was filed by the respondent/plaintiff for recovery of a huge sum of money by way of damages. It was therefore apparently unfair on the part of the Presiding Officer to deny the petitioner/defendants an opportunity to contest the suit on merit in the above facts and circumstances. 7. Mr. M. Wabang learned Counsel appearing on behalf of the respondent/plaintiff submitted that he has no objection if the matter is remitted to the Court of Addl. Session Judge, Dimapur, for re-trial by setting aside the order passed by the learned Court below, however, submitted that a date may be fixed for submission of written statement by the appellant and also prays for early disposal of the suit. 8. For the foregoing reasons, considering the facts and circumstances in its entirety, this Court is of the view that this is a fit case where this Court is required to interfere with the impugned order of the learned Court below. Apparently, the procedure followed by the learned Addl. District Judge, Dimapur, in not allowing any officer of the Court to receive any plaint or petition during the absence of the Presiding Officer of the Court, either on leave or otherwise, would literally mean closing the filing section of the Court during such absence of the Presiding Officer, which is not permissible under the law. Even during the absence of the Presiding Officer, the Registry and the office of the Court has to remain functional. Even during the absence of the Presiding Officer of the Court, the date of such filing or submission of the plaint has to be counted while calculating the period of limitation. If such exercise is not permitted in the Court, such Court shall be deemed to be closed on those days within the meaning of Section 4 of the Limitation Act, 1963, which however is not so in the instant case. If such exercise is not permitted in the Court, such Court shall be deemed to be closed on those days within the meaning of Section 4 of the Limitation Act, 1963, which however is not so in the instant case. A petition or proceeding cannot be said to be barred by limitation for having submitted it in the office before a proper officer during the absence of the Presiding Officer of the Court on leave or otherwise. 9. Accordingly, in view of the above, the impugned order dated 27.8.2008 passed by the learned Addl. District and Session Judge, Dimapur, is liable to be set aside. As an upshot thereof, the ex parte decree dated 20.6.2008 passed by the learned Addl. District Judge, Dimapur in Civil Suit No. 15 of 2007 is set aside. Learned Court of Addl. District Judge, Dimapur is directed to dispose of the suit in accordance with law. However, as the suit is pending disposal for a long time, the learned Court below shall make all endeavour to dispose of the suit within 6 (six) months from the date of receipt of the case record from this Court in accordance with law. 10. The Registry of this Court is directed to transmit the case record with a copy of this order within this week Parties are directed to appear before the learned Court below on 4.7.2009. This Misc. appeal is disposed of with the above directions and observations.