Research › Search › Judgment

Calcutta High Court · body

2010 DIGILAW 1013 (CAL)

Ramji Roy v. Ram Chandra Shaw

2010-08-18

SYAMAL KANTI CHAKRABARTI

body2010
JUDGMENT Syamal Kanti Chakrabarti, J. 1. THIS is an application for recalling of the judgement dated 23.06.2009 passed by Hon'ble Justice Jyotirmay Bhattacharya in S. S. 323 of 1999. 2. LEARNED counsel for the petitioner contends that the OP/ plaintiff filed a Title Suit being 407 of 1988 against the defendant/ petitioner herein for his eviction from the suit premises as a licensee though the defendant/ petitioner herein was a tenant in the suit premises for a long time. By judgement and decree dated 29th June, 1996 LEARNED erstwhile Munsif, First Appellate Court, Sealdah dismissed the suit on contest. Against the order of such dismissal the petitioner herein preferred an appeal being Title Appeal No. 101 of 1996. The said appeal being Title Appeal No. 101 of 1996 was allowed by Assistant District Judge, Sealdah on 26.05.1997 reversing the aforesaid judgement and decree of the LEARNED Trial Court. The plaintiff then filed a Second Appeal being S. A. 323 of 1999 which was heard by the Hon'ble Justice Jyotirmay Bhattacharya and by order dated 23.06.2009 His Lordship has been pleased to set aside the judgement and decree of the LEARNED First Appellate Court and restored the judgement and decree passed by the LEARNED Trial Court. Being aggrieved by and dissatisfied with such order the defendant/ petitioner herein has preferred this application for recalling of the said judgement dated 23.06.2009. The grounds for recalling such order are mainly absence of learned advocate for the petitioner Mr. Tapan Kumar Mitra at the time of hearing of the matter which was disposed of without hearing the learned advocate for the petitioner herein, that means the respondent in the aforesaid appeal. In paragraph nos. 7 to 13 of the petition the petitioner has stated in details the grounds for absence of learned lawyer for the petitioner herein as well as inability of the petitioner to represent at the time of hearing on account of his old age and infirmity. In fact the Second Appeal was disposed of ex parte on 23.06.2009 and thereafter he applied for certified copy of the said order on 01.07.2009 which was made ready on 31.08.2009 but in fact he got delivery of the same in the second week of September. In fact the Second Appeal was disposed of ex parte on 23.06.2009 and thereafter he applied for certified copy of the said order on 01.07.2009 which was made ready on 31.08.2009 but in fact he got delivery of the same in the second week of September. Thereafter he could not meet his learned advocate in the month of September to take necessary steps for filing the application for recalling the said order and ultimately he has filed this application on 26.10.2009 and such delay was unintentional for which he has prayed for condonation of such delay in paragraph no. 12 of the petition and to allow the instant prayer for recalling of the aforesaid order. 3. FROM the judgement dated 23.06.2009 passed in S. A. 323 of 1999 I find that though the appeal was decided in absence of the respondent the Learned Judge has elaborately discussed on merit the points involved in the Second Appeal on the basis of five substantial questions of law which were formulated by the Division Bench of this Hon'ble Court for hearing the instant appeal. Therefore, no prejudice has been caused to the respondent/petitioners herein for disposal of the Second Appeal on merit in his absence. Moreover, the manner in which the instant application has been filed praying for condonation of delay does not inspire my confidence to believe that the petitioner herein was really interested to contest the Second Appeal. He has taken the plea of preoccupation of his learned advocate in prosecuting his studies for appearing at the examination for direct recruitment from bar 2009 which was scheduled from 29.06.2009 to 07.07.2009. The other ground for absence of the learned advocate for the petitioner herein on 19.06.2009 is that he was suffering from various ailments and gave general power of attorney in favour of his son Sri Bhim Roy. This is contradictory because if general power of attorney is given to his son, his personal presence looses all significance. In paragraph no. 12 of the petition he has stated that in September, 2009 he could not meet with his learned advocate for taking necessary steps but what prevented him or his son, in whose favour power of attorney was given, to contact his learned advocate is not been stated in the petition. Therefore, the grounds for recalling the order appear to me to be not convincing. Therefore, the grounds for recalling the order appear to me to be not convincing. Moreover, under Order 39 Rule 17 CPC where the appellant appears and the respondent does not appear the appeal may be heard ex parte. So, I fully subscribe to the views rendered by the learned lawyer for the opposite party that only to withhold the delivery of possession of the suit premises which is illegally occupied by the present petitioner after passing of the judgement and decree by the Learned Trial Court in 1996 such type of frivolous application has been filed. Since the Second Appeal has been disposed of on merit though ex parte within the meaning of Order 39 Rule 17 CPC in absence of the respondent/petitioner herein, I do not find any error apparent on record or cogent grounds either to condone the delay in preferring this application or to recall the impugned order dated 23.06.2009 passed by this Hon'ble Court. 4. SO I hold that the present application is devoid of any merit and the same is accordingly dismissed with cost of Rs. 3,400/-. Let urgent Photostat certified copy of this order, if applied for, be given to all the parties upon compliance of all necessary formalities.