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2011 DIGILAW 1292 (CAL)

MITHU @ ASIT MAJUMDER v. SANJIB KUMAR CHAKRABORTY

2011-09-16

MRINAL KANTI SINHA, SUBHRO KAMAL MUKHERJEE

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JUDGMENT 1. This appeal will be heard on the following substantial question of law: Whether the learned judges in the courts below substantially erred in law in decreeing the suit without granting a notice to the defendant after restoration of the suit, which stood dismissed for default? 2. Mr. Madhusudan Sur, learned advocate, has entered appearance by filing a vakalatnama on September 14, 2011 on behalf of the respondents under filing no.A-14847. 3. Mr. Sur, learned advocate accepts notice of this appeal on behalf of the respondents. 4. Although the matter is appearing under the heading ‘for orders’, by consent of Mr. Hiranmoy Bhattacharya, learned advocate appearing for the appellant, and Mr. Madhusudan Sur, learned advocate appearing for the respondents, the appeal itself is taken up for hearing upon dispensation of all formalities. 5. On July 12, 2006, the suit was dismissed for default. An application under Section 151 of the Civil Procedure Code was filed before the trial court. On July 14, 2006, the learned trial judge restored the suit subject to payment of cost to the District Legal Service Authority. The cost was paid. Consequently, the suit was restored to its original file and number. Immediately, the suit was taken up for hearing, but no fresh service of summons was ordered on the defendant after restoration of the suit although the defendant was not present at the time of restoration of the suit. 6. The suit was taken up for ex parte hearing; the plaintiffs’ witness no.1 was examined. 7. After the hearing of the suit was concluded, the defendant appeared and prayed for time to enable them to move a revisional application before the High Court challenging the order of restoration. The revisional application, we are informed, is still pending in the High Court being Civil Order No.3634 of 2006. 8. However, the learned trial judge did not thought it fit to grant adjournment and decreed the suit on October 18, 2006. The learned judge in the lower appellate court affirmed such decree. 9. We feel that when the suit was restored to its original file and number in the absence of the defendant, the defendant was entitled to fresh summons of the suit and the learned trial judge should not have proceeded in hot haste to conclude the hearing of the suit in the absence of the defendant. 10. 9. We feel that when the suit was restored to its original file and number in the absence of the defendant, the defendant was entitled to fresh summons of the suit and the learned trial judge should not have proceeded in hot haste to conclude the hearing of the suit in the absence of the defendant. 10. Therefore, the impugned judgment and decree of the courts below are set aside and the suit is restored to its original file and number subject, however, to payment of costs of Rs.10,000/-(Rupees ten thousand) only to the plaintiff. 11. Let such cost be paid before the commencement of the long vacation of this Court for the year 2011. Such cost is to be paid by banker’s cheque drawn in the name of Sanjib Kumar Chakraborty, the respondent no.1 and shall be handed over to the learned advocate for the respondents, who shall accept the cheque on behalf of the respondents and shall arrange for issuing stamped receipt for such payment from the respondents. 12. If the costs, as aforesaid, are paid within the time stipulated hereinabove, the learned trial judge shall proceed with the hearing of the suit. In default of payment of cost, the appeal shall stand dismissed and the decree for eviction shall be executable at once. 13. The parties are directed to appear before the court on November 9, 2011, when the learned judge shall fix a date of hearing of the suit. 14. The plaintiffs shall produce their witness no.1 for cross-examination by the defendant. The plaintiffs shall be entitled to give further evidence. The defendant shall, also be entitled to adduce his evidence in the suit. 15. However, the learned judge must peremptorily dispose of the suit before the commencement of the Christmas holidays of the civil courts for the year 2011. 16. The time framed, as aforesaid, is mandatory and peremptory. The learned trial judge is directed not to grant any unnecessary adjournment to either of the parties. 17. By way of abundant caution, we make it clear that we have not gone into the merits of the claim and the counter claim of the parties involved in the suit and all issues are left open and are to be decided by the learned trial judge in accordance with law. 18. The appeal is, thus, allowed, however, subject payment of costs, as aforesaid. 19. 18. The appeal is, thus, allowed, however, subject payment of costs, as aforesaid. 19. In view of the disposal of the appeal, the application becomes infructuous and the same is, thus, disposed of. 20. We make no order as to costs. 21. Let a copy of this order together with the lower courts' records be sent down to the court below through a special messenger at the costs of the respondents and such costs is to be put in by Monday next. 22. The learned Registrar General of this Court is requested to see that the order is communicated to the trial court peremptorily before the commencement of the long vacation of the civil courts for the year 2011.