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2011 DIGILAW 991 (CAL)

Mosammat Saiyada Khatun v. Saiyera Banu

2011-07-28

SOUMEN SEN

body2011
JUDGMENT 1. THIS revisional application is arising out of an order dated 7th November, 2006 passed by the Appellate Court, namely, the Court of Additional District Judge, 2nd Court at Arambagh in Misc. Appeal No. 1 of 2005, by which the said Appellate Court has reversed the order passed by the learned Civil Judge (Junior Division), 2nd Court at Arambagh. 2. IT appears that by the order dated 30th November, 2004 learned Trial Judge allowed an application filed by the petitioner herein under Order 9 Rule 13 of the Code of Civil Procedure (hereinafter referred to as the C.P.C.) and thereby the decree was set aside. Against the said order instead of preferring the revisional application, an appeal was preferred. It does not appear from the record any objection was taken on behalf of the petitioner regarding maintainability of the appeal, although under Order 43 Rule 1(d) of the C.P.C. the said order is revisable and not appellable. 3. THE appellate Court reversed the said order and upheld the decree. In this revisional application, a preliminary point was taken on behalf of the petitioner of the Appellate Court, could not have entertained the said appeal since the order of learned Civil Judge allowing the application under Order 9 Rule 13 is not appellable. Since it goes to the root of the matter and is a question of law, I allow that point to be urged in this revisional application. 4. ORDER 43 Rule 1(d) of the C.P.C. is set out here in below:- "An order under Rule 13 of ORDER IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte." It appears that Order 43 Rule 1(d) of the C.P.C. is a clear bar. The said provision also came up for consideration before the Hon'ble Supreme Court in the judgment reported in 2004(13) SCC 679 (Bhutan Rout and Another v. Lal Bahadur Yadav). The relevant portion of the judgment is reproduced hereunder:- "Para. 4. The only submission made by the learned Counsel for the appellants is that the order dated 4.10.2001 passed by the learned District Judge, Siwan is without jurisdiction inasmuch as the order of the trial Court passed on application under Order 9 Rule 13 C.P.C. and allowing the application by setting aside the ex parte decree could not have been appealed against. A bare perusal of Order 43 C.P.C. shows that an appeal is maintainable, insofar as an application under Order 9 Rule 13 C.P.C. is concerned, only against an order rejecting an application and not against an order allowing the application. The appeal before the learned District Judge was wholly misconceived and not maintainable and the same could not have been allowed. The learned Counsel for the respondent has found it difficult to dispute this legal position." 5. SINCE the appeal was not maintainable, the order of the Appellate Court is without jurisdiction and is a nullity. 6. HOWEVER, at this stage, Sardar Amjad Ali, learned Senior Counsel appearing on behalf of the opposite parties submitted that his client should be given liberty to prefer a revisional application against the order of the Hon'ble Judge passed on 30th November, 2004 allowing the said appeal filed under Order 9 Rule 13 of the C.P.C. Having regard to the peculiar facts and circumstances of this case and that the said objection was not taken by the petitioner before the Appellate Authority, I think that Mr. Ali's client should be given an opportunity to file a revisional application. 7. IN the event such application is filed within a period of three weeks from date, the Court below should not insist for any separate application for condonation of delay and decide the matter afresh uninfluenced by any observation made in the appellate order dated 7th November, 2006. Mr. Ghosh, learned Advocate appearing on behalf of the petitioner also in his usual fairness a greed to such liberty being given to the petitioner to file such application. 8. THE impugned order dated 7th November, 2006 is set aside. THE revisional application thus succeeds. Let photocopy of this order duly countersigned by Assistant Registrar (Court) be given to the parties on the usual undertakings.