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2011 DIGILAW 1106 (CAL)

Kamrunnisha v. Zubeda Khatoon

2011-08-16

SYAMAL KANTI CHAKRABARTI

body2011
JUDGMENT Syamal Kanti Chakrabarti, J. 1. THE present revisional application under Article 227 of the Constitution has been preferred challenging the legality and propriety of order no. 96 dated 19.02.2005 passed by the learned Civil Judge (Junior Division), 2nd Court, Asansol in Misc. Case No. 19 of 2001 arising out of Title Suit No. 137 of 1998. 2. IT is submitted on behalf of the petitioner that the plaintiff/ opposite party filed Title Suit No. 137 of 1998 for a declaration that he is the owner and in possession of the A schedule property and has easementary right over B schedule property which is part and parcel of A schedule property and that the defendant no. 1/ petitioner has no right, title and interest over the B schedule property save and except the easementary right. But they are trying to block the passage over the B schedule property by making a construction and blocking the window of the suit premises of the plaintiff. The defendant/ petitioner did not contest said suit after getting assurance from the plaintiff/ opposite parties that the same would be withdrawn but ultimately it proceeded ex parte and decreed on 19.04.1997 declaring the plaintiff/ opposite partys easementary right over the B schedule property as well as permanent injunction restraining the defendant/ petitioner from making any construction over the suit property and to remove the construction it made. The petitioner came to know from her learned Advocate about such ex parte order on 13.07.2001 and filed an application under Order 9 Rule 13 CPC which was registered as Misc. Case No. 19 of 2001 along with an application under Section 5 of the Limitation Act, 1963 for condonation of delay in filing the said restoration application. But the said application for condonation of delay was dismissed by the learned Court below on 20.03.2004 as none moved the same on call. Thereafter, the petitioner filed an application under Section 151 CPC against such ex parte order of dismissal of the application under Section 5 of the Limitation Act filed by the petitioner praying for exercise of inherent power of the Court but the said prayer was also rejected by order no. 96 dated 19.02.2005 which has now been assailed. 3. Thereafter, the petitioner filed an application under Section 151 CPC against such ex parte order of dismissal of the application under Section 5 of the Limitation Act filed by the petitioner praying for exercise of inherent power of the Court but the said prayer was also rejected by order no. 96 dated 19.02.2005 which has now been assailed. 3. IT is contended on behalf of the defendant/ petitioner that the learned Court below has arbitrarily rejected the prayer and refused to exercise his inherent power conferred under Section 151 CPC without assigning any reason or discussing as to whether there was sufficient cause for reconsideration or modification of such order. From this point of view the impugned order of the learned Court below is perverse and is liable to be set aside. 4. LEARNED lawyer for the plaintiff/ opposite party has contended that the petitioner/ defendant is intentionally dragging the matter without reasonable cause which will be reflected from her conduct and so the learned Court below has rightly rejected the prayer which should not be interfered with. While considering such petition under Section 151 CPC the learned Court below has taken into account that the petition under Section 5 of the Limitation Act filed by the defendant/ petitioner was initially fixed for hearing on 24.04.2002 and thereafter the hearing was adjourned for as many as fifteen times. On 20.03.2004 the learned Counsel for the petitioner filed Hazira but in spite of repeated call did not appear on account of his engagement in another matter being Misc. Case being no. 21 of 2000 in the Court of learned Erstwhile Munsif, Asansol. The preoccupation of the learned Advocate after granting 15 adjournments was not taken into consideration by the learned Court below as a sufficient ground for further adjournment and as such he was not inclined to adjourn the matter. Moreover, the order was passed on 20.03.2004 but the petitioner filed the application under Section 151 CPC on 09.06.2004 after long lapse of three months without assigning any cogent reason for such further delay. Therefore, he has rejected the application under Section 151 CPC and dismissed the application on contest without cost. 5. LEARNED lawyer for the petitioner has drawn my attention to the principles laid down in AIR 1981 SC 1400 . Therefore, he has rejected the application under Section 151 CPC and dismissed the application on contest without cost. 5. LEARNED lawyer for the petitioner has drawn my attention to the principles laid down in AIR 1981 SC 1400 . In the said case the Honble Apex Court has held, inter alia, that a party should not suffer for misdemure or inaction of his Counsel. In the instant case it appears that the absence of the learned Lawyer for a singular occasion was not seriously taken into account by the learned Court below. The consecutive non-appearance and inaction on the part of the defendant/ petitioner on fifteen occasions without reasonable cause prompted the learned Court below to reject the prayer because the conduct of the party was not inspiring and the learned Court below has rightly held that the defendant was not diligently pursuing the case for years together. Suppression of earlier rejection of same prayer on 19.02.2005 is also another cogent ground for which his subsequent application is not maintainable in law. Therefore, the above principle will not be applicable in the facts and surrounding circumstances of this case. 6. LEARNED lawyer for the petitioner has also pointed out that though the decree was passed ex parte the same cannot be executed for want of proper identification of the B schedule property and as such the prayer should be allowed for administration of substantive justice though at a belated stage. In AIR 1979 Cal 365 (Meheran Bibi and Ors. Vs.- Sk. Razzak and Ors.) it has been held, inter alia, that it is the duty of the executing Court to consider the question regarding necessity of local investigation and the failure of the decree-holder to bring the question to the notice of the Court does not amount to malpractice or mala fides on his part and so any order for restoration of possession on ground of vagueness of the suit property is liable to be set aside. Relying upon the above principle I hold that failure of the defendant to substantiate his claim of delay in preferring any application under Order 9 Rule 13 CPC cannot be cured under Section 151 CPC on the background of finality of such order reached earlier but suppressed before the Court in the name of granting substantial justice. Relying upon the above principle I hold that failure of the defendant to substantiate his claim of delay in preferring any application under Order 9 Rule 13 CPC cannot be cured under Section 151 CPC on the background of finality of such order reached earlier but suppressed before the Court in the name of granting substantial justice. In dismissing such application I do not find any illegality or impropriety refusing exercise of the inherent power of the Court under Section 151 CPC in the given circumstances. Learned lawyer for the plaintiff/ opposite party has submitted that exercise of discretionary power under Section 151 CPC can be made where no remedy is available under any other specific provision of the code. For setting aside an ex parte decree appropriate remedy is available under Order 9 Rule 13 CPC and if the defendant fails to succeed in such application he cannot take recourse to the provisions of Section 151 CPC seeking same remedy without any reasonable cause. 7. IT is also apparent on the face of record that the defendant filed application under Order 9 Rule 13 CPC on 16.07.2001 with an application under Section 5 of the Limitation Act which was registered as Misc. Case No. 19 of 2001. The said application under Section 5 was disposed of under order no. 89 dated 20.03.2004. On 09.06.2004 the defendant filed a petition under Section 151 CPC praying for setting aside the said order dated 20.03.2004. On 19.02.2005 the said application was rejected. IT also appears from the xerox certified copy of the order no. 104 dated 07.04.2006 passed in Misc. Case No. 19 of 2001 that the defendant/ opposite party filed another petition under Section 151 CPC dated 18.05.2005 praying for reconsidering the order dated 19.02.2005 and to hear his petition under Order 9 Rule 13 CPC. But the learned Court below has held that the Court cannot twice exercise its discretionary power under Section 151 CPC as there was no error apparent on the face of record and the appropriate remedy lies before the higher forum and as such there is no scope to agitate on the same issue before the learned Court below. So he dismissed the said application on contest without cost on 07.04.2006. 8. So he dismissed the said application on contest without cost on 07.04.2006. 8. AGAINST such order of rejection dated 07.04.2006 the defendant did not move before the higher forum for setting aside such order but suppressing the same he has filed the above application which is not sustainable in law. I fully subscribe to the same view rendered by the learned Lawyer for the plaintiff/ opposite party and hold that once plaintiffs prayer for condonation of delay and consideration of his application under Order 9 Rule 13 CPC for setting aside ex parte order was rejected by order dated 20.03.2004 in absence of any move before higher forum against such order within the period of limitation the same has reached its finality which cannot be reopened merely on account of preoccupation of the learned lawyer at a later stage by invoking inherent power of the Court under Section 151 CPC. Therefore, in subsequent rejection of same prayer for the second time on 19.02.2005 and third time on 07.04.2006 by the learned Court below does not suffer from any material irregularity which calls for any interference. Therefore, I find much substance in the contention of the learned Lawyer for the plaintiff/ opposite party and hold that there is no illegality or impropriety in dismissing the application under Section 151 CPC filed by the defendant/ petitioner and as such there is no merit in this revisional application which is accordingly dismissed. 9. INTERIM order granted earlier, if any, stands vacated. Urgent certified photocopies of this order, if applied for, be supplied to the parties, on compliance of all requisite formalities.