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2010 DIGILAW 1085 (CAL)

Renu Prova Paul v. Sannyasi Charan Ghosh

2010-08-27

MD.ABDUL GHANI

body2010
JUDGMENT 1. IN the instant case one Sannyasi Charan Ghosh by filing an application has prayed for recalling and/or setting aside the impugned judgment and decree dated 30.1.2004 passed by the Hon'ble Judge of this Court in S.A. No. 231 of 1999 upon condonation of delay. 2. AFTER going through the materials on record and also upon hearing the learned Advocate appearing for the present petitioner it could be detected that initially the petitioner instituted a suit being T.S. No. 124 of 1982 before the learned Civil Judge (Senior Division), 1st Court, Alipore against the opposite parties for specific performance of contract. In the said suit, opposite party No. 1 entered appearance and contested the suit by filing a written statement and ultimately the learned trial Judge upon hearing the learned Lawyers for the parties concerned was pleased to dismiss the suit on 23.3.1993. Thereafter, the plaintiff-petitioner being aggrieved preferred an appeal being Title Appeal No. 165 of 1993 which came up for hearing on 4.4.98 before the learned Additional District Judge, 7th Court, Alipore, when the learned Judge upon hearing the learned Lawyers of both sides was pleased to allow the said appeal and set aside the judgment and decree dated 23.3.93 passed by the learned trial Court. Subsequently, the aggrieved opposite party preferred the second appeal being S.A. No. 231 of 1999 challenging the aforesaid judgment and decree dated 4.4.98 and the said second appeal appeared for admission hearing on 9.2.99 before Their Lordships Hon'ble Justice N.K. Mitra and Hon'ble Justice B.M. Mitra (as Their Lordship then were) when their Lordships after hearing the learned Advocate for the appellant were pleased to admit the appeal. Ultimately, on 12.12.2008 the petitioner came to know that the aforesaid appeal had already been disposed of by the Hon'ble Court. The learned Advocate appearing for the petitioner after making necessary enquiry and search gathered information that the aforesaid appeal came up for hearing on 30.1.2004 before His Lordship Hon'ble Justice Amitava Lala (as His Lordship then was), when His Lordship was pleased to take up the appeal for bearing and allowed the same ex parte upon formulating the following substantial questions of law: (a) Whether the non-compliance of Section 16 of the Specific Relief Act by the plaintiff/purchaser is good enough for the purpose of contesting the issue as against him ? (b) Whether the power of attorney being ext. (b) Whether the power of attorney being ext. 2 is a valid piece of document for the purpose of admissibility in evidence? It has been contended on behalf of the petitioner that at the time of admission of the second appeal no substantial questions of law were formulated by the Hon'ble Court. However, at the time of final hearing of the appeal aforesaid substantial questions of law were formulated by the Hon'ble Court in absence of other side. Further it may be pointed out that at the time of formulation of the substantial question of law as well as for hearing of the appeal, none appeared on behalf of the plaintiff -respondent/ petitioner on 30.1.2004. It may be pertinent to point out that since the substantial questions of law were formulated on 30.1.2004 notice was required to be served upon the opposite party. The petitioner immediately after coming to know about the ex parte judgment and decree passed in the instant appeal approached the learned Advocate who advised him to file the instant application for recalling and/or setting aside the ex parte judgment and decree dated 30.1.2004 passed by the Hon'ble Court for the purpose of obtaining an opportunity to contest the appeal. Ultimately on 16.12.2008 the petitioner came up before this Court with the present application seeking condonation of delay of 1780 days for recalling the ex parte judgment and decree dated 30.1.2004. 3. MR. Haradhan Banerjee, the learned Counsel appearing for the petitioner while making submissions drew this Court's attention to the contents of the judgment and decree dated 30.1.2004 as also some other important materials on record including the supplementary affidavit filed on behalf of the petitioner and contended that for no fault on the part of the petitioner he has been put into tremendous harassment due to passing of ex parte judgment and decree dated 30.1.2004. Further he submitted that due to laches on the part of the engaged lawyer the petitioner's case was heard and disposed of ex parte on 30.1.2004 when the learned Judge of this Court considering the circumstances of the matter formulated the substantial question of law and granted no opportunity to the present petitioner/ respondent in the second appeal being S.A. No. 231 of 1999 and was thus pleased to dispose of the same. He has in support of his submission relied upon the rulings reported in AIR 1983 SC 318 (Savithri Amma Seethamma v. Aratha Karthy and Ors.) and AIR 1981 SC 1400 (Rafiq and Anr. v. Munshilal and Anr.) and also the rulings reported in (1997)5 SCC 438 : 1997 WBLR (SC) 436 (Kshitish Chandra Purkait v. Santosh Kumar Purkait and Ors.) and (2008)12 SCC 181 (Mahant Dooj Dass (dead) Through L.R. v. Udasin Panchayati Bara Akhara and Anr.) and strongly argued and submitted that in the present case for rendering natural justice to his client Courts should consider the principles of the ruling referred to herein and pass necessary order by recalling the judgment and decree dated 30.1.2004 after condoning the delay. 4. ON scrutiny of the record it could be ascertained that at the relevant time of hearing of the S.A. No. 231 of 1999 before the Hon'ble Judge of this Court none appeared on behalf of the petitioner-respondent. Further, it is the admitted situation that the Hon'ble Judge without affording any opportunity to the petitioner-respondent for defending the question of laws formulated, decided the appeal causing miscarriage of justice. In view of the ruling reported in (1997)5 SCC 438 (Kshitish Chandra Purkaitv. Santosh Kumar Purkait and Ors.) (supra) it is the duty cast upon Hon'ble Court to formulate the substantial question of law involved in the case and the opposite party should be put on notice thereon and should be given a fair or proper opportunity to meet the points or point formulated. Further the guidelines to determine as to what is a substantial question of law within the meaning of Section 100, C.P.C. have been laid down by this Court in a Constitution Bench decision in Chunilal Mehta and Sons v. Sentury SPG and MFG Co. Ltd. In the light of the legal position stated above, I am of the view that the Hon'ble Judge of this Court while passing the impugned judgment and decree did not adopt the proper procedure by not granting any opportunity to the present petitioner-respondent for defending the points of law formulated by the Hon'ble Court. Further, in this context I am of the view that the reasons for delay have been substantially explained. It is the settled principle of law that for laches or negligence on the part of the concerned Counsel the litigant should not be put to sufferings. Further, in this context I am of the view that the reasons for delay have been substantially explained. It is the settled principle of law that for laches or negligence on the part of the concerned Counsel the litigant should not be put to sufferings. Here, in the present case, the learned Lawyer on the date of hearing i.e. on 30.1.2004 neither appeared before the Court nor intimated the present petitioner-respondent about the fate of the case decided ex parte on the said date i.e. on 30.1.2004 AIR 1984 SC 41 , Smt. Lachi Tewari and Ors. v. Director of Land Records and Ors. 5. FOR the reasons afore said, I am satisfied to conclude and hold that the petitioner has been able to explain the delay properly and I further hold that the impugned judgment and decree dated 30.1.2004 suffers from legal infirmity. Accordingly, the same needs to be recalled. In the circumstances, the petition stands allowed and the impugned judgment and decree dated 30.1.2004 be recalled. 6. THE petitioner to serve the notice to the other side by Registered Post with Acknowledgement Due as also Courier Service and to file affidavit of service by 5.10.2010 when the matter will appear as a "Contested Hearing".