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2012 DIGILAW 1551 (PAT)

Canara Bank, Panjwara Branch v. Urmila Devi

2012-11-08

JYOTI SARAN

body2012
ORDER I.A.No. 3757 of 2007 This interlocutory application under Section 5 of the Limitation Act,1963 has been filed praying for condonation of delay in filing the Civil Revision application. 2. The petitioner himself admits that whereas the application ought to have been filed by 17.01.2007, it was filed only on 21.5.2007, after a delay of more than 4 months. 3. I have perused the reasons assigned in the interlocutory application explaining the delay caused in filing the civil revision application and upon being satisfied, the delay in filing the civil revision application is condoned and this interlocutory application is accordingly disposed of. C.R.No. 1059 of 2007 4. The opposite party No.1, Bal Kishore Roy had deceased during the pendency of the proceedings and was substituted by his legal heirs under Order dated 23.7.2010. 5. Though served, the legal heirs of opposite party No.1, late Bal Kishore Roy, have not chosen to appear. The opposite party Nos. 2 and 3 have appeared through counsel but there was no representation on their behalf when the matter was taken up with a view to its final disposal on 24.8.2012 and orders were reserved after hearing Mr. R.K.P. Singh learned counsel for the petitioner. 6. This civil revision application is directed against the order dated 19.10.2006 passed by learned Sub Judge II, Banka in Misc. Case No.1 of 2006 (Canara Bank Vs. Bal Kishore Roy & Ors.) whereby the learned Court below has been pleased to reject the application filed on behalf of the petitioner under Order 9 Rule 4 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’) praying for recall of the judgment and decree dated 1.4.2006 passed in Money Suit No. 24 of 1994 whereby the suit has been dismissed on contest. The facts of the present case is in very narrow compass. 7. A money suit was filed by the petitioner-Bank against the defendant-opposite parties being the borrower and the guarantor, for realization of the loan amount of Rs. 2,45,205/- in the Court of Sub-ordinate Judge, Banka giving rise to Money Suit No. 24 of 1994. Upon summons being served, the defendants appeared and also filed their written statement and the matter was transferred to the Court of Sub-ordinate Judge-II, Banka for disposal. 2,45,205/- in the Court of Sub-ordinate Judge, Banka giving rise to Money Suit No. 24 of 1994. Upon summons being served, the defendants appeared and also filed their written statement and the matter was transferred to the Court of Sub-ordinate Judge-II, Banka for disposal. The copy of the ordersheet has been placed on record at Annexure-1 which manifests that the matter was pending at the stage of leading evidence by the plaintiff who is the petitioner before this Court. As the petitioner failed to lead his evidence, the trial Court by order dated 1.4.2006 closed the evidence of the plaintiff and since on call even the defendants were not present nor ready for evidence hence the Court directed for closure of the defendant evidence also and the matter was posted for judgment after the recess. 8. The ordersheet shows that after the recess the suit was dismissed on contest. The copy of the judgment dated 1.4.2006 has been placed on record at Annexure-4 to the supplementary affidavit filed on 9.2.2010. The decree prepared and signed on 15.4.2006 has been produced during the course of the hearing of the present application. 9. As according to the petitioner the judgment and decree was not passed upon adjudication of the rival claims rather while purporting to be a judgment and decree, it was more in the nature of dismissal for default hence an application under Order 9 Rule 4 of the Code read with Section 151 thereof, was filed for recall of the judgment and order dated 1.4.2006 passed in Money Suit No. 24 of 1994 giving rise to Misc. Case no. 1 of 2006 and which was dismissed by the order impugned dated 19.10.2006 inter alia on the ground that the judgment and decree having been drawn up, the same was appealable and hence the present civil revision application. 10. Mr. R.K.P. Singh, learned counsel for the petitioner has submitted that as the suit was fixed for leading of evidence by the plaintiff on 1.4.2006 and evidence was yet to be led, the trial Court could only take recourse to the provisions of Order 9 of the Code and no other provisions. It was submitted that although the judgment dated 1.4.2006 purports to be a judgment on contest, but in absence of any evidence, it has to be treated to be the dismissal of the suit in default. It was submitted that although the judgment dated 1.4.2006 purports to be a judgment on contest, but in absence of any evidence, it has to be treated to be the dismissal of the suit in default. Learned counsel with reference to the provisions of Order 17 Rule 2 and 3 of the Code submits that the said provision can only come into play once a hearing begins in a suit and not prior thereto. 11. Learned counsel with reference to the definition of the term “judgment” as found in Section 2(9), the term “decree” as found in Section 2(2) and the term “Order” as found in Section 2(14) of the Code submits that a plain reading of the judgment passed by the trial Court would manifest that it does not satisfy the pre-requisites to constitute a decree in absence of their being any adjudication and conclusive determination of the rights of the parties. It was submitted that as the hearing was yet to begin in the case and no evidence either oral or documentary had been adduced on behalf of either parties, the provisions of Order 17 Rule 2 of the Code was not attracted and for the same reasons even Rule 3 thereof would not be applicable. It was thus submitted that in these circumstances, there was no infirmity on the part of the petitioner in preferring an application under Order 9 Rule 4 of the Code seeking recall of the judgment and decree dated 1.4.2006 and for restoration of the suit to its original file. Learned counsel in support of his submissions has relied upon the following judgments:– (1) AIR 2003 SC 3527 (B. Janakiramaiah Chetty Vs. A.K. Parthasarthi and others). With reference to paras 12 and 13 of the judgment it was submitted that in absence of the parties, a judgment and decree shall be treated to be an order passed in default. (2) AIR 1970 Bombay 132 (Madhao Narayan Vs. Ragho Niloo and others). It was submitted that in a similar matter arising from a judgment passed by a Tribunal, the High Court held that in absence of parties the order being in violation of principles of natural justice, has to be treated as an order passed in default. (3) AIR 1949 Sindh 26 (Hassomal Tillumal Vs. Ghulam Nabishah). Ragho Niloo and others). It was submitted that in a similar matter arising from a judgment passed by a Tribunal, the High Court held that in absence of parties the order being in violation of principles of natural justice, has to be treated as an order passed in default. (3) AIR 1949 Sindh 26 (Hassomal Tillumal Vs. Ghulam Nabishah). With reference to the judgment it was submitted that in the said case both the parties were absent and judgment and decree was pronounced. It was held that a revision against such judgment and decree is maintainable (4) AIR 1987 SC 42 (Prakash Chander Manchanda and another v. Smt. Janki Manchanda). It was submitted that in the said case the defendant was absent on the adjourned date for hearing and did not adduce any evidence. In the circumstances it was held that the Court may proceed to pass an ex parte decree under Order 9 Rule 6 of the Code and in such case a defendant may file an application under Order 9 Rule 13 of the Code for setting aside the ex parte judgment and decree. 12. Learned counsel submits that the factors essential to constitute a decree are as follows:– (a) There must be formal expression of adjudication; (b) The adjudication must be a conclusive determination of a right of the parties; (c) The determination of rights must be in respect of all or any matter in controversy in the suit; (d) The judgment and decree should fulfill the requirements set out in Order 20 Rules 1,5, 6 and 7 of the Code, and (e) As the order dated 1.4.2006 does not stand the litmus test to constitute a decree though pronounced as a judgment, it has to be treated as a dismissal simpliciter in default and since the restoration has been illegally rejected, hence the revision is maintainable. 13. Learned counsel in support of his submissions has relied upon the following judgments:– (1) 1996 (1) PLJR 494 (Ravneshwar Thakur & Ors. Vs. Neeraj Kumar Thakur & Ors.) (2) AIR 2001 SC 279 (Ratan Singh Vs. Vijay Singh and others) (3) AIR 1994 SC 1901 (Deep Chand and other Vs. Land Acquisition Officer and others) (4) AIR 1976 SC 1503 (Diwan Brothers Vs. Central Bank of India, Bombay and others) (5) AIR 1997 Raj 284 (Chhelaram Vs. Manak) (6) 2008 (2) PLJR 308 (Najbun Nisa @ Najmul Nisa Vs. Vijay Singh and others) (3) AIR 1994 SC 1901 (Deep Chand and other Vs. Land Acquisition Officer and others) (4) AIR 1976 SC 1503 (Diwan Brothers Vs. Central Bank of India, Bombay and others) (5) AIR 1997 Raj 284 (Chhelaram Vs. Manak) (6) 2008 (2) PLJR 308 (Najbun Nisa @ Najmul Nisa Vs. Masrool Alam) 14. Mr. Singh in support of his submission that a revision against the order impugned is maintainable, submits that though the order dated 1.4.2006 purports to be in the form of a judgment but in absence of any adjudication on the rights of the parties and in absence of any evidence being led, the same does not satisfy the essentials of a judgment and decree and hence the revision is maintainable against the order impugned. 15. Learned counsel in support of his submissions regarding maintainability of a civil revision application against such orders which do not fulfill the requirements of a decree has relied upon the following judgments:– (1) AIR 1963 Patna 1 (Mosafir Mahton Vs. Mt. Bachani) (2) AIR 1973 Patna 166 (Deo Dutta Singh & Ors. Vs. Ram Naresh Singh & Ors.) (3) AIR 1976 Delhi 148 (Emmanual Simon Peters Vs. Mrs. Alice Peters and another) 16. Learned counsel thus submits that in view of the statutory provisions and the principles of law settled under the judgments of the Courts as applied to the present case it is clear that the judgment and decree dated 1.4.2006 does not satisfy the statutory requirements and hence no appeal would lie rather the restoration application was maintainable and has been wrongfully rejected by the trial Court on misappreciation of law. 17. As observed the opposite parties though served have not chosen to contest and hence the issue has to be tested on the basis of the materials on record and in the backdrop of the submissions advanced by learned counsel. 17. As observed the opposite parties though served have not chosen to contest and hence the issue has to be tested on the basis of the materials on record and in the backdrop of the submissions advanced by learned counsel. Although extensive arguments has been made by learned counsel appearing on behalf of the petitioner but the issues which are relevant for consideration are the following:– (I) Whether the judgments and decree dated 1.4.2006 satisfy the statutory requirements of Section 2(9), Section 2(2) read with the provisions of Order 20 and if the answer to the same is in the negative then; (II) Whether the Court below Court below has erred in rejecting the application of the petitioner filed under Order 9 Rule 4 of the Code, and (III) Whether in the circumstances the revision under Section 115 of the Code is maintainable. 18. It is not in contest rather is eloquent from the ordersheet in the suit proceedings placed at Annexure-1 that evidence was yet to be led in the proceedings by the plaintiff and the matter had been posted for the said purpose on 1.4.2006. The hearing thus was yet to begin. The provisions of Order 10 Rule 2 and Order 14 Rule (1) (5) manifest that the hearing in a suit begins with the framing of issues and leading of evidence by the parties. The provisions of Order 18 Rule 1 of the Code further provides for circumstances determining which of the parties shall commence the hearing of the suit/examination of witness. It is after the hearing has begun in the light of the aforesaid provisions that the provisions of Order 17 comes into play regulating the hearing of the suit. The other provision which is relevant for the issue in hand is the provision of Order 9 and since neither of the parties was present on the date fixed for hearing hence the relevant rule would be Rule 3 thereof. In the present case, the ordersheet manifests that the matter had been posted for evidence by the plaintiff, meaning thereby the evidence was yet to begin. The ordersheet further reveals that on the date fixed i.e 1.4.2006 neither the plaintiff appeared nor the defendants appeared and as a consequence the evidence of both the sides were closed by the trial Court and the matter was posted for judgment after recess. 19. The ordersheet further reveals that on the date fixed i.e 1.4.2006 neither the plaintiff appeared nor the defendants appeared and as a consequence the evidence of both the sides were closed by the trial Court and the matter was posted for judgment after recess. 19. I have already observed that the hearing in a suit begins upon framing of issues/examination of witness and which admittedly did not take place in the present case and thus the hearing had not commenced in the proceedings. The Supreme Court in the case of Kanwar Singh Saini Vs. High Court of Delhi reported in (2012) 4 SCC 307 and in the case of Rasiklal Manikchand Dhariwal & Anr. Vs. M.S.S. Food Products reported in (2012) 2 SCC 196 has held that hearing in a suit begins after framing of issues and preliminary examination of parties and not upon return of summons. 20. Now the question is that on the date fixed i.e. 1.4.2006 with neither parties in attendance, what was the option available before the trial Court. Obviously, since the hearing had not yet begun, the provisions of Order 17 Rules 2 or 3 could not be invoked. The only option thus available to the trial Court was to proceed under Order 9. But the trial Court instead of proceeding under Order 9 of the Code chose to order for the closure of the evidence of both the parties who were found absent on the date fixed for hearing i.e 1.4.2006 and proceeded to pass a judgment on the same date after recording a finding that the plaintiff-petitioner had failed to substantiate his case through evidence despite sufficient and reasonable time having been provided. Although the provision of Order 17 Rule 2 and 3 of the Code does enable the Court to proceed in a matter where a party has failed to produce his evidence despite time being granted but the circumstances warranting such procedure also has been engrafted in the provision and which can be invoked only after commencement of hearing and not prior to that stage, as having been done in the case in hand. 21. A some what similar issue came up for consideration before a Bench of this Court in First Appeal No. 76 of 2010 in the Case of Ashok Kumar Sharma Vs. Raghunath Prasad Singh & Ors. 21. A some what similar issue came up for consideration before a Bench of this Court in First Appeal No. 76 of 2010 in the Case of Ashok Kumar Sharma Vs. Raghunath Prasad Singh & Ors. In the said case the plaintiff had failed to lead evidence and the trial Court after hearing the arguments of the defendant had posted the suit for final argument and judgment. The prayer of the plaintiff for recall of the order whereby the evidence of the plaintiff had been closed and for allowing him to adduce evidence, was rejected and judgment was pronounced dismissing the suit. A Bench of this Court upon analysis of the statutory provisions and the judgments on the issue, has proceeded to hold as follows:– “18. From the perusal of the order sheet of the title suit it transpires that the plaintiff on 18.10.2005 had filed the witness list as well as his documentary evidence alongwith a list, and was thereafter directed to produce his witnesses. However, he did not produce his witnesses up till 21.11.2005 on which date he absented and consequently his evidence was closed, and the defendant was directed to produce his evidence. At this juncture, it would be relevant to take notice of the provision of O. 17, R.2 & 3 of the Code of Civil Procedure. The said provisions read as follows:- O.17, R. 2 Proceeding if parties fail to appear on date fixed.–Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by O.IX or make such other order as it thinks fit. Explanation.–Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present. Explanation.–Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present. O.17, R.3.Court may proceed notwithstanding either party fails to produce evidence, etc.–Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default,- (a) if the parties are present, proceed to decide the suit forthwith; or (b) if the parties are, or any of them, is absent proceed under R.2. 19. It is discernible from the above said provisions that if the plaintiff failed to appear on 21.11.2005 and failed to adduce evidence, the Court on that day had the option to proceed under the modes prescribed in O. 9 C.P.C. or to pass other appropriate order. Now it would be pertinent to notice the provisions of O.9 C.P.C. relating to a condition when the plaintiff fails to appear when the suit is called on for hearing. O.9, R 8 reads as follows:- O.9, R.8: Procedure where the defendant only appears.–Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. 20. Thus when the plaintiff failed to appear on 21.11.2005 and comply the earlier direction of the Court to produce his witnesses, the Court had only two options as provided in O.17, R.2 C.P.C.: firstly to dismiss the suit and secondly to make such other order as it thinks fit. 20. Thus when the plaintiff failed to appear on 21.11.2005 and comply the earlier direction of the Court to produce his witnesses, the Court had only two options as provided in O.17, R.2 C.P.C.: firstly to dismiss the suit and secondly to make such other order as it thinks fit. It is by now well settled that the power to “make such other order as it thinks fit” confers a discretion to the Court either to adjourn the suit or to proceed on merits, in view of the explanation, if there are sufficient materials to justify that course. The case of non-appearance of a plaintiff on the adjourned day of hearing and the course open to the Court under O.17,R.2 and R.3 C.P.C. to follow in such a case, has come to be considered by a Bench of this Court in the case of Shashibhushan Kumar & Ors. Vs. Dwarka Prasad Marwari & Ors. AIR 1922 Patna 2 where their lordships have held as follows: “….Now in my view the case was one under R.2 and not one under R.3. There must be some difference between R.2 and R.3, the difference seems to me to be this: that when there are materials on the record on which the Court can decide the case the matter falls properly under R.3 and not under R.2…........... It is true that the learned Subordinate Judge proceeded to record evidence called on behalf of the defendant but then he had no business whatever to adopt this course. If neither party adduced evidence, the suit on the pleadings would fail, and, therefore, it was wholly unnecessary for the learned Subordinate Judge to direct the defendants to produce evidence…… ……………….. It seems to me that he called upon the defendants to produce the evidence in order to give himself jurisdiction to act under R.3. In my view the case fell under R.2 and he should not have called upon the defendants to adduce evidence in the case…” 21. Yet in another case of Mahabir Prasad Dubey Vs. Sheodayal Pathak AIR 1928 Patna 167, the same view has been reiterated by a Bench of this Court. Their lordships have laid down as follows: “…It appears that the petitioner took time to produce his evidence from time to time. Yet in another case of Mahabir Prasad Dubey Vs. Sheodayal Pathak AIR 1928 Patna 167, the same view has been reiterated by a Bench of this Court. Their lordships have laid down as follows: “…It appears that the petitioner took time to produce his evidence from time to time. Ultimately the Court refused to grant him further time and dismissed the application; but it is to be observed that the hearing of the suit has not commenced before the learned District Judge. That being so, O.17, R.3 does not apply. It is well established that O.17, R.3 only applies where the hearing of a suit has commenced and an application for an adjournment is then made by one of the parties. It is also established that when before the hearing of a suit is commenced the plaintiff fails to appear on adjourned date, the Court has to proceed under R.2 and not R.3; that is to say, it has power to dismiss the suit under O.9, R.8 so as to give the plaintiff an opportunity of having the dismissal set aside under O9, R.9…” 22. From the facts of the present case, it is apparent that on 21.11.05, which was the adjourned date of hearing, the plaintiff did not appear and did not produce his evidence but the Court, instead of resorting back to the modes prescribed under O.9. C.P.C., had proceeded to close the evidence of the plaintiff and directed the defendant to lead his evidence. It appears that the plaintiff, thereafter, appeared and prayed for stay of the further proceeding on the basis that a transfer application had been filed before the learned District Judge for transfer of the suit to another Court. However, the learned court below did not allow the prayer of the plaintiff and proceeded to record the evidence of the defendants. Thereafter the matter was posted on 15.03.2010 for argument and judgment, and on that day the plaintiff filed a petition for recall of the order dated 21.11.05 and for permission to adduce his evidence. The said petition was dismissed, and thereafter the final decision was rendered dismissing the suit of the plaintiff for want of evidence. 23. Thereafter the matter was posted on 15.03.2010 for argument and judgment, and on that day the plaintiff filed a petition for recall of the order dated 21.11.05 and for permission to adduce his evidence. The said petition was dismissed, and thereafter the final decision was rendered dismissing the suit of the plaintiff for want of evidence. 23. In view of these facts it is graphically clear that the learned court below has adopted a procedure which is not warranted by the provisions of the Code of Civil Procedure and has wrongly dismissed the suit of the plaintiff on merits. By not dismissing the suit for non-appearance on 21.11.05 when the plaintiff failed to appear, the Court below has acted illegally in depriving opportunity to the plaintiff to take recourse to O.9, R.9 C.P.C. for having the dismissal set aside; and has further illegally burdened him with a decree of dismissal on merits, compelling him to file this appeal. This view is further supported by the judgment of the apex court in the case of M/s Build India Construction System Vs. Union of India, A.I.R.2002 S.C.2436.” 22. The judgment of the Single Judge in the case of Ashok Kumar Sharma Vs. Raghunath Prasad Singh & Ors. (supra) applies with full force to the case in hand. Even when the hearing was yet to begin, the trial Court posted the matter for judgment after ordering closure of evidence of both the parties. The judgment passed in Money Suit No. 24 of 1994 dated 1.4.2006 placed at Annexure-4 is perversity personified and to say the least an apology for judgment. 23. The term “perversity” has been explained by the Supreme Court in its judgment reported in (2010) 13 SCC 216 (Municipal Committee, Hoshiarpur Vs. Punjab State Electricity Board & Ors.). I am tempted to reproduce paragraph 28 of the said judgment. “28. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. “28. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmise, the judgment suffers from the additional infirmity of non-application of mind and thus, stands vitiated. (Vide Bharatha Matha v. R. Vijaya Renganathan).” 24. The pronouncement of the trial Court purported to be a judgment rendered in Money Suit No. 24 of 1994 is not only perverse and suffers from material irregularity but also does not satisfy the essential requisites to constitute a judgment and decree. 25. The trial Court in such circumstance was not correct in rejecting the application of the petitioner filed under O 9 r 4 of the Code, for restoration of the Suit. Hence the present civil revision application is held maintainable. 26. For the reasons aforesaid the order dated 19.10.2006 passed in Misc. Case No. 1 of 2006 as also the judgment and decree dated 1.4.2006 passed in Money Suit No. 24 of 1994 (Canara Bank Vs. Bal Kishore Roy & Ors.) cannot be upheld and are accordingly set aside and Money Suit No. 24 of 1994 is restored to its original file. 27. The Trial Court shall proceed to consider and dispose of the Money Suit No. 24 of 1994 in accordance with law after due notice and opportunity to the defendants to appear and contest the matter. 28. This civil revision application is allowed however without any order as to costs.