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2010 DIGILAW 1439 (CAL)

Sandhya Ghose v. Raghunath Dutta

2010-12-13

PRASENJIT MANDAL

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JUDGMENT Prasenjit Mandal, J. 1. THIS application is at the instance of the defendants and is directed against the order dated April 6, 2001 passed by the learned Additional District Judge, Tenth Court, Alipore in Misc. Appeal No.52 of 1999 thereby rejecting the misc. appeal and confirming the judgment and order passed by the learned Trial Judge in Misc. Case No.45 of 1987 arising out of the Title Suit No.94 of 1967. 2. THE opposite party/plaintiff filed a title suit being Title Suit No.94 of 1967 for declaration and other reliefs. In that suit, the defendants appeared and they were contesting the said suit by filing a written statement. Accordingly, issues were framed. But, at the time of peremptory hearing of the suit, the defendants did not appear and for that reason, the said title suit was decreed ex parte on September 9, 1971. Thereafter the defendants filed an application under Order 9 Rule 13 of the Code of Civil Procedure, which was registered as Misc. Case No.42 of 1971. That misc. case was dismissed for default on December 16, 1972. For that reason, the defendants filed another misc. case being Misc. Case No.45 of 1987 on August 11, 1987, i.e., after lapse of about 15 years from the date of dismissal of the earlier misc. case along with an application under Section 5 of the Limitation Act for setting aside the order of dismissal of the Misc. Case No.42 of 1971. The Misc. Case No.45 of 1987 was dismissed on contest along with the application under Section 5 of the Limitation Act by the learned Trial Judge, i.e., the learned Civil Judge (Senior Division), Sixth Court, Alipore. Thereafter, the defendants preferred a Misc. Appeal No.52 of 1999 against the order of dismissal of the misc. case. That misc. appeal too was also dismissed on contest on April 6, 2001. Being aggrieved by the order of dismissal of the misc. appeal, this application has been preferred. Now the point for consideration is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on going through the record, I find that admittedly, the plaintiff / opposite party filed the title suit being Title Suit No.94 of 1967 for declaration and other reliefs. Admittedly, the petitioners entered appearance in the suit and filed a written statement. 3. ADMITTEDLY, issues were framed in the suit. Upon hearing the learned counsel for the parties and on going through the record, I find that admittedly, the plaintiff / opposite party filed the title suit being Title Suit No.94 of 1967 for declaration and other reliefs. Admittedly, the petitioners entered appearance in the suit and filed a written statement. 3. ADMITTEDLY, issues were framed in the suit. Admittedly, the petitioners did not appear at the time of call of the suit on September 9, 1971. As a result, the suit was decreed ex parte against the defendants. Admittedly, the defendants/petitioners preferred the Misc. Case No.42 of 1971 under Order 9 Rule 13 of the C.P.C. but that misc. case was dismissed for default on December 16, 1972. Since then, the petitioners remained silent for a consideration period of about 15 years and then only on August 11, 1987, they filed a misc. case being Misc. Case No.45 of 1987 under Order 9 Rule 9 of the C.P.C. for setting aside the order of dismissal for default of the misc. case on December 16, 1972. 4. THE learned Trial Judge was to consider whether the petitioners had sufficient cause for non-appearance at the time of dismissal of the misc. case on December 16, 1972. In order to prove the sufficient cause on December 16, 1972, the petitioners have examined as many as 7 witnesses and exhibited a number of documents. The defendant no.1 herself, her son, another defendant, the Advocate on record and doctors, are the witnesses amongst the persons examined in support of their contention of sufficient cause for non-appearance on December 16, 1972. The learned Trial Judge has analysed the evidence on record in details and has come to a finding that the petitioners have hopelessly failed to prove that the defendant no.1, namely, Satyabati Ghose, was ill at the material time. The learned Trial Judge has also held that the petitioners have failed to prove that the Advocate of the defendant no.1 did not inform about the case to the defendant no.1. Thus, the learned Trial Judge has concluded that the petitioner (defendant no.1) has failed to make out sufficient cause for non-appearance at the time of call. The learned Trial Judge has also opined that the defendant no.1 has failed to prove as to why Satyabati Ghose was prevented by sufficient cause from taking steps against the order of dismissal passed in Misc. The learned Trial Judge has also opined that the defendant no.1 has failed to prove as to why Satyabati Ghose was prevented by sufficient cause from taking steps against the order of dismissal passed in Misc. Case No.42 of 1971 during the period from 1972 to 1987. As a result, the learned Trial Judge did not find sufficient cause for condonation of delay in filing the instant case. So, he dismissed the misc. case along with the application under Section 5 of the Limitation Act. 5. AGAINST such order of dismissal of the misc. case, the petitioners preferred a misc. appeal being Misc. Appeal No.52 of 1999 and the learned Additional District Judge, Tenth Court, Alipore has made elaborate discussion about the oral and documentary evidence adduced by the petitioners. Thereafter, he endorsed the view taken by the learned Trial Judge with regard to condonation of delay and sufficient cause for non-appearance on the part of the defendant no.1. Both the courts below have discussed the evidence in details and come to a concurrent finding. 6. THE petitioner of the Misc. Case No.45 of 1987 contended that Satyabati Ghose (P.W.1) was ill and she had to undergone operation and for that reason, she was admitted to a nursing home on February 9, 1969 and she had undergone appendicitis operation on February 11, 1969 and she stayed there up to March 1, 1969 and discharged on March 2, 1969. Thereafter, she was at her home. She could have easily advised her son to take necessary steps on the date of dismissal of the first misc. case and in fact, on the date of dismissal of the misc. case, she was not at all in the said nursing home. Therefore, the contention of the petitioner that she was suffering from various ailments and for that reason she could not take necessary steps on the date of dismissal of the misc. case cannot be accepted. The period of admission to a nursing home from February 9, 1969 to March 2, 1969 has nothing to do with the relevant date of dismissal of the misc. case, i.e., on December 16, 1972. Similarly, the contention of the petitioner that her son stayed elsewhere; for that reason, he could not take necessary steps, cannot be accepted. The period of admission to a nursing home from February 9, 1969 to March 2, 1969 has nothing to do with the relevant date of dismissal of the misc. case, i.e., on December 16, 1972. Similarly, the contention of the petitioner that her son stayed elsewhere; for that reason, he could not take necessary steps, cannot be accepted. The learned Trial Judge and the learned lower appellate court have rightly analysed the evidence on record and came to a right decision on the matter in this regard. Similarly, the contention of the petitioner that her lawyer was also ill at that long period of about 15 years, cannot also be accepted. Therefore, I am of the view that the concurrent decision arrived at by the two courts below are based on evidence on record and those findings cannot be stated to be perverse at all. This is not a court of second appeal but a court of review only. Since the findings of the two courts below are based on evidence on record and both the courts below have appreciated the evidence in a proper way, I am of the view this revisional Court should not interfere with the concurrent findings of the courts below. So, the impugned order should be sustained. 7. FOR inaction on the part of the petitioners for a long period about 15 years, the plaintiff/opposite party has gained a valuable right and the suit is supposed to have come to a settled position finally. Such valuable right be lapse of reasonable time, should not be disturbed unless there is a proper justification for the delay. 8. THIS application is, therefore, meritless. So, this application is dismissed. Considering the circumstances, there will be no order as to costs.