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2012 DIGILAW 367 (CAL)

Provat Kumar Mitra v. Sudakshina Sen

2012-04-27

PRASENJIT MANDAL

body2012
Judgment :- Prasenjit Mandal, J. This application is at the instance of the plaintiff and is directed against the Order No.64 dated April 17, 2009 passed by the learned Additional Controller, Sealdah in Misc. Case No.11 of 2006 under Order 9 Rule 13 of the Civil Procedure Code (henceforth shall be called ‘CPC’) arising out of an Ejectment Suit No.360 of 2005. The plaintiff/petitioner herein instituted a suit being Ejectment Suit No.360 of 2005 for recovery of possession, mesne profit and other reliefs under Section 6 of the West Bengal Premises Tenancy Act, 1997 on the ground of reasonable requirement against the defendant/opposite party before the learned Additional Controller at Sealdah. Ultimately, the said suit was decreed ex parte. Thereafter, the defendant/tenant filed a Misc. Case being Misc. Case No.11 of 2006 under Order 9 Rule 13 of the CPC for vacating the ex parte decree. The plaintiff/petitioner herein contested the said Misc Case. Upon consideration of the materials-on-record, the learned Trial Judge allowed the Misc. Case on contest and the ex parte decree dated February 2, 2006 passed in the said Ejectment Case had been set aside. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained. Upon hearing the learned Counsel for the parties and on perusal of the materials-on-record, I find that both the parties have adduced evidence in support of the respective contentions in the said Misc. Case. The learned Trial Judge has analyzed the evidence on record and thereafter, he has come to a finding that the defendant/tenant became failure to appear or take steps on the relevant dates before the Court when her case was called for hearing, on account of circumstances beyond her control, and substantially attributable to latches on the part of her Advocate Monali Biswas. The learned Trial Judge has also held that there is no deliberate latches or negligence of the defendant/tenant with regard to her conduct and the fault, if any, lay upon her Advocate Monali Biswas who failed to communicate the date of the hearing to Advocate Mr. Samindra Kumar Das. The learned Trial Judge has also held that no party should be penalized for the latches and negligence about on his or her advocate. Accordingly, the Misc. Case was allowed. Samindra Kumar Das. The learned Trial Judge has also held that no party should be penalized for the latches and negligence about on his or her advocate. Accordingly, the Misc. Case was allowed. Upon perusal of the materials-on-record, I find that the learned Trial Judge has analyzed the evidence on record and thus, he came to a finding that the defendant/tenant is an old lady and she is unable to stand even in the Witness Box when he came to Court to depose on September 20, 2006. The Court has taken the judicial notice of the fact. Even the Court has recorded that the O.P.W.1 has admitted in her cross-examination that she has seen P.W.1 deposing from the wheelchair, has admitted that the P.W.1 has been using the wheelchair for the last 2 years. The evidence of the P.W.1 that she depended upon her daughter who is a teacher and knew about the case appears to be natural and convincing. The P.W.1 has frankly stated that she did not instruct her daughter or servant to enquire about the dates and that on 7/11/2005, 5/12/2005, 13/1/2006 and 2/2/2006. She did not send her daughter or servant to enquire about the dates. She has also admitted that she has no knowledge about her Advocate’s illness or her marriage. The Advocate, namely, Monali Biswas has been examined as P.W.2 and she has deposed that she filed show-cause on January 13, 2006. She has also proved her medical prescriptions and her marriage. She has stated that at the relevant time, she was ill first and thereafter, her marriage was settled and that is why she could not move the show-cause petition on January 13, 2006 as neither petitioner (Defendant/tenant) nor her agent were present in the Court. It is her specific statement that she could not contact the defendant/tenant during her absence due to illness and marriage. The O.P.W. No.1 has admitted that she was not aware and informed regarding the particulars of the P.W.2 that is the fact of illness and marriage which means that the O.P.W. No.1 is not in a position to deny the statement of the learned Advocate, P.W.2. The O.P.W. No.1 has admitted that she was not aware and informed regarding the particulars of the P.W.2 that is the fact of illness and marriage which means that the O.P.W. No.1 is not in a position to deny the statement of the learned Advocate, P.W.2. So, upon analysis of the evidence, the learned Trial Judge has observed that a party should not suffer from latches or negligence on the part of the Advocate and thus, he has concluded that the defendant/tenant has shown sufficient cause for nonappearance at the time of hearing of the said suit. Mr. Samaraditya Pal, learned Counsel appearing on behalf of the petitioner has submitted that the learned Trial Judge did not appreciate the provisions of Order 9 Rule 13 of the CPC when both the parties were heard and orders were passed on February 2, 2006. He has also contended that the sole defendant died before pronouncement of the judgment and as such, the decree passed by the learned Trial Judge on February 2, 2006 would loose its binding effect upon the respective parties. He has also contended that since an application under Order 22 Rule 3 was filed by Sudakkhina Sen, the provisions of Order 22 Rule 6 of the Code of Civil Procedure will not come into force. So, the impugned order cannot be supported and it must be set aside. On the other hand, Mr. Jiban Ratan Chatterjee, learned Counsel appearing for the opposite party has submitted that the sole defendant died after conclusion of the hearing but before deliver of judgment and so, according to the decision of Saraswati Shaw @ Menu Shaw & Ors. v. Laxmi Moni Shaw @ Laxmi Rani & Anr. reported in 2005 (3)CHN 373 and thus, he submits that the provisions of Order 22 Rule 6 of the C.P.C. will apply irrespective of filing of the application under Order 22 Rule 3 of the C.P.C. He also supported the judgment that as per materialson-record, the learned Trial Judge has rightly concluded and so, there is no scope of interference. In view of the above findings, I find that the hearing of the suit was completed earlier and then the judgment was delivered only on February 2, 2006. In the intervening period, the sole defendant died. Therefore, the provisions of Order 22 Rule 6 of the Code of Civil Procedure will be attracted. In view of the above findings, I find that the hearing of the suit was completed earlier and then the judgment was delivered only on February 2, 2006. In the intervening period, the sole defendant died. Therefore, the provisions of Order 22 Rule 6 of the Code of Civil Procedure will be attracted. The learned Trial Judge has analyzed the evidence on record and he has placed reliance on the evidence adduced on behalf of the plaintiff and since the plaintiff was not in a position to deny the contention of the defendant, the application under Order 9 Rule 13 of the CPC was rightly allowed. This is not a Court of appeal. In exercising the jurisdiction of superintendence, the decision based on evidence should not be interfered with. The impugned judgment cannot be said to be perverse. Accordingly, I am of the view that in exercising the discretionary power exercised by the learned Trial Judge on equitable principle should not be interfered with by exercising the jurisdiction of superintendence under Article 227 of the Constitution. Accordingly, I am of the view that there is no scope of interference with the impugned order. The application is, therefore, dismissed. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.