Research › Search › Judgment

Calcutta High Court · body

2013 DIGILAW 765 (CAL)

Gayatri Debi v. Raja Ram Dal Mill

2013-10-08

TARUN KUMAR GUPTA

body2013
Judgment : Tarun Kumar Gupta, J. The defendant has filed this revisional application under Article 227 of the Constitution of India challenging the order dated 1st of March, 2010 passed by learned Civil Judge (Junior Division), second Court at Sealdah, district – 24 Parganas (south) in Title Suit No.277 of 1999. The background facts of the case may be summarized as follows:- The O. P. M/s. Raja Ram Dal Mill being represented by its partners filed said Title Suit No.277 of 1999 praying for a decree for declaration that it was a lawful tenant under the petitioner defendant in respect of the suit properties and not to be dispossessed therefrom without due process of law with other consequential reliefs. The petitioner being defendant appeared in said suit on 15th June, 2001 and filed written statement denying material allegations of the plaint. On 8th of January, 2002 the petitioner defendant filed counter claim under order 8 rule 6 A of the Code of Civil Procedure. The plaintiff O. P. filed an application dated 19th of January, 2005 praying to strike out the counter claim filed by the defendant petitioner. After contested hearing learned trial court rejected said application dated 19th of January, 2005. The plaintiff O. P. preferred a revisional application being Civil Order No.3417 of 2005 before this Court challenging said order dated 1st of September, 2005. After contested hearing said revisional application being Civil Order No.3417 of 2005 was rejected vide order dated 27th of February, 2008. The plaintiff O. P. filed a review application being RVW No.91 of 2008 against order dated 27th of February, 2008 rejecting the revisional application being Civil Order No.3417 of 2005. On 7th of July, 2009 the peremptory hearing of the suit was adjourned fixing 24th of August, 2009 as the next date of hearing. On 24th of August, 2009 the defendant petitioner did not take any step and he was directed to showcause by the learned trial court by 12th of November, 2009. On 12th of November, 2009 though the petitioner defendant filed a showcause petition but the same was not moved. Learned trial court rejected said showcause petition for being not moved as well as the counter claim filed by the petitioner defendant vide order dated 12th of November, 2009 and posted the suit for ex parte hearing on 7th of January, 2010. Learned trial court rejected said showcause petition for being not moved as well as the counter claim filed by the petitioner defendant vide order dated 12th of November, 2009 and posted the suit for ex parte hearing on 7th of January, 2010. On the same day i.e., 12th of November, 2009 the defendant petitioner filed an application under Section 151 of the Code of Civil Procedure praying to recall the order of ex parte hearing and rejection of the counter claim. After contested hearing learned trial court rejected said application under Section 151 of the Code of Civil Procedure by the order impugned dated 1st of March, 2010. Mr. Rabindra Nath Mahato, learned counsel appearing for the defendant petitioner, submits that learned trial court rejected said application dated 12th of November, 2009 under Section 151 of the Code of Civil Procedure mainly on two grounds. The first ground was that there was direction of the Hon'ble Court in Civil Order No. 3417 of 2005 for expeditious hearing. The second ground was that Section 151 of the Code of Civil Procedure was not applicable for restoration of a counter claim being dismissed for default as it was akin to a plaint. Mr. Mahato submits that learned trial court failed to take note that the O. P. plaintiff filed a review application being RVW No.91 of 2008 against order dated 27th of February, 2008 rejecting the revisional application being Civil Order No.3417 of 2005 and that the same was pending even on 12th of November, 2009 when for not moving the showcause petition the suit was posted for ex parte hearing after rejection of the counter claim filed by the petitioner defendant. According to him, as the application for review of order of rejection dated 27th of February, 2008 of the revisional application being Civil Order No.3417 of 2005 was pending before this Court the force of said order dated 27th of February, 2008 in said civil order wherein a direction was given to the learned trial court for expeditious disposal of the suit virtually remained stayed. According to him, though the review application was ultimately dismissed on 19th of November, 2009 but in view of pendency of the review application on 12th of November, 2009 learned trial court should not have posted the suit for ex parte hearing after rejection of the counter claim filed by the petitioner defendant. According to him, though the review application was ultimately dismissed on 19th of November, 2009 but in view of pendency of the review application on 12th of November, 2009 learned trial court should not have posted the suit for ex parte hearing after rejection of the counter claim filed by the petitioner defendant. He next submits that as said order of posting the case for ex parte hearing after rejection of the counter claim filed by the petitioner defendant vide order dated 12th of November, 2009 was passed during pendency of the review application said order was bad in law. According to him, as said order was bad in law learned trial court should have recalled said order on the strength of an application under Section 151 of the Code of Civil Procedure. He further submits that for recalling of said order dated 12th of November, 2009 the petitioner defendant was not required to file an application under order 9 Rule 9 of the Code of Civil Procedure though the counter claim is akin to a plaint in terms of the provision under order 8 rule 6 A of the Code of Civil Procedure. In support of his contention he refers case laws reported in AIR 1979 Calcutta page 338 (Sm. Annapurna Chatterjee vs. Smt. Sabita Guha and others), 84 CWN page 328 (Samar Bhusan Pal vs. Sakti Pada Das) and AIR 1977 Delhi page 7 (M/s. Devi Dayal Textile Company and others vs. Nand Lal). Mr. Dilip Kumar Banerjee appearing for the O. P. plaintiff, on the other hand, submits that neither in the application under Section 151 of the Code of Civil Procedure nor in the earlier showcause petition or in any other petition the petitioner defendant ever stated before the learned trial court that in view of pendency of review application in connection with Civil Order No.3417 of 2005 he was not in a position to take steps or that the suit should not proceed or that there was any order of stay on account of pendency of said review application. According to him, pendency of said review application was no ground of stay of the suit. He next submits that in view of the provisions of order 8 rule 6 A sub-rule (4) of the Code of Civil Procedure a counter claim in a suit is treated as a plaint. According to him, pendency of said review application was no ground of stay of the suit. He next submits that in view of the provisions of order 8 rule 6 A sub-rule (4) of the Code of Civil Procedure a counter claim in a suit is treated as a plaint. According to him, as the counter claim was dismissed for default while the other side was present in Court the only prescribed procedure was filing of a Misc. case under order 9 rule 9 of the Code of Civil Procedure for restoration of said counter claim after setting aside the order of dismissal for default. Accordingly, he submits that the order impugned does not call for any interference by this Court of revision. I have considered the submissions made by learned counsels of the parties. Perused the order impugned and other materials on record. Admittedly, at the time of disposal of the Civil Order No.3417 of 2005 by this Court vide order dated 1st of September, 2005 there was a direction upon the learned trial court for expeditious disposal of the pending suit. It is true that one review application being review No.91 of 2008 against said order dated 27th of February, 2008 rejecting the revisional application being Civil Order No.3417 of 2005 was filed by the O. P. plaintiff. But there is nothing on record to show that either it was conveyed to the learned trial court or that there was any order of stay of the operation of the order dated 27th February, 2008 passed in Civil Order No.3417 of 2005 till disposal of said review application. Apart from that the petitioner defendant neither stated in his earlier showcause petition nor in the application under Section 151 of the Code of Civil Procedure that any review application was pending or that on that score he could not take any step or that he was misled on that score. Under these circumstances pendency of review application was no bar on the part of the learned Trial Court to proceed with the suit expeditiously in terms of the order dated 27th of February, 2008 passed in Civil Order No.3417 of 2005. In the case of Sm. Under these circumstances pendency of review application was no bar on the part of the learned Trial Court to proceed with the suit expeditiously in terms of the order dated 27th of February, 2008 passed in Civil Order No.3417 of 2005. In the case of Sm. Annapurna Chatterjee (supra) this Court held that if a litigant is made to suffer on account of fault of the Court, the Court will not be justified in refusing him to grant relief on technical grounds. In that case the party being misled by wrong valuation of suit in final decree, filed two appeals, one in the court of Additional District Judge and the other in the High Court. The appeal in the court of Additional District Judge was dismissed for non-prosecution though it should have been adjourned till disposal of the appeal in High Court. It was held by this Court that said appeal could be restored by exercising the inherent powers under Section 151 of the Code of Civil Procedure though there is a provision for restoration of appeal under order 41 rule 19 of the Code of Civil Procedure. In the case of Samar Bhusan Pal (supra) an order for temporary injunction was passed in the absence of the defendant and it was found that the same was obtained by fraudulent suppression of notice and misrepresentation and fraud practised upon the court. In that case this court held that an application under Section 151 of the Code of Civil Procedure should be allowed for recalling said ex parte order which was obtained by fraud, though there was specific provisions under order 43 rule 1 of the Code of Civil Procedure for filing an appeal challenging an interim order of injunction. In the case of M/s. Devi Dayal Textile Company and others (supra) a suit was dismissed for default due to mistake of the court and the court, on the same day, on discovering the mistake recalls the order of dismissal. The Delhi High Court held that the court had the power under Section 151 of the Code of Civil Procedure to recall said order of dismissal which was passed due to mistake of the court. Unfortunately, none of the aforesaid case laws as referred by Mr. Mahato is of any help to the petitioner defendant in the facts and circumstances of the present case. Unfortunately, none of the aforesaid case laws as referred by Mr. Mahato is of any help to the petitioner defendant in the facts and circumstances of the present case. In all referred case laws the order was passed due to mistake and / or error on the part on the court and accordingly it was held that the court should rectify the mistake by invoking Section 151 of the Code of Civil Procedure and that there was no need to resort to the other prescribed mode for setting aside said order. In the case in hand, I have already stated that there was no mistake on the part of the court concerned for fixing the date for ex parte hearing after rejecting the counter claim as no step was taken to move his showcause petition filed by the petitioner defendant. Accordingly, I find and hold that the order impugned does not call for any interference by this court by exercising extraordinary power under Section 227 of the Constitution of India. However, I make it clear that if the petitioner defendant files a Misc. case under order 9 rule 9 of the Code of Civil Procedure along with an application praying for condonation of delay, if any, within 4 weeks on reopening of the civil court after puja vacation of 2013 then learned trial court should dispose of the same according to law after giving an opportunity of being heard to the parties. The revisional application is hereby dismissed on contest. However, I pass no order as to costs. CAN No.6146 of 2011 This is an application filed by the plaintiff O. P. praying to recall the order dated 24th of November, 2010 by which the interim order, passed earlier, was extended till the disposal of present revisional application. In view of the disposal of the main revisional application this application has become infractuous. As such, this application stands disposed of being infractuous. CAN No.6633 of 2010 The petitioner plaintiff has filed this application praying for drawing a proceeding under Section 340 of the Code of Criminal Procedure against the O.P. defendant (petitioner of C. O. No.1407 of 2010). In view of the disposal of the main revisional application this application has become infractuous. As such, this application stands disposed of being infractuous. CAN No.6633 of 2010 The petitioner plaintiff has filed this application praying for drawing a proceeding under Section 340 of the Code of Criminal Procedure against the O.P. defendant (petitioner of C. O. No.1407 of 2010). It is the case of the plaintiff petitioner of this application that for not taking any step on 24th of August, 2009 learned trial court fixed the next date on 12th of November, 2009 directing O. P. defendant to showcause as to why the suit shall not proceed ex parte against him after rejecting his prayer for counter claim. It is further case that in said showcause petition the ground was taken that the defendant was seriously ill and so no step could be taken on 24th of August, 2009. It is further alleged that in the revisional application being C. O. No.1407 of 2010 it was alleged in para 22 that due to misposting of the date of hearing of the suit in the diary of the learned advocate of the petitioner defendant, on 24th of August, 2009, the petitioner could not take any step in the proceedings before the trial court. Said revisional application being C. O. No.1407 of 2010 was supported by an affidavit sworn by one Promode Kumar Gupta, son of the petitioner defendant and that para 22 was asserted to be true to his information derived from the records of the case. It is alleged in the application that as grounds mentioned in para 22 of the revisional application and the grounds taken in the showcause petition dated 12.11.2009 which was also a verified petition, were totally different and contradicting it amounted to making false statements before the court and that on that ground an enquiry under Seciton 340 of the Code of Criminal Procedure should be initiated. Mr. Dilip Kumar Banerjee appearing for the plaintiff petitioner of this application submits that as false statement was made vide para 22 of this revisional application an enquiry should be initiated under Section 340 of the Code of Criminal Procedure. Mr. Banerjee in this connection has referred case laws reported in AIR 2001 SC 2204 (Suo Moto proceeding against Mr. Mr. Dilip Kumar Banerjee appearing for the plaintiff petitioner of this application submits that as false statement was made vide para 22 of this revisional application an enquiry should be initiated under Section 340 of the Code of Criminal Procedure. Mr. Banerjee in this connection has referred case laws reported in AIR 2001 SC 2204 (Suo Moto proceeding against Mr. R. Karuppan, advocate) and AIR 2002 SC 236 (Pritish vs. State of Maharashtra and others) to impress upon this court that no lenient view should be taken against a person guilty of swearing false affidavit in a court of law. Mr. Mahato appearing for the defendant / O.P. submits that in the application under Section 151 of the Code of Civil Procedure the next date was wrongly noted as 11th of November, 2009 though the order of rejection of counter claim and posting the suit for ex parte hearing was passed on 12th of November, 2009. According to Mr. Mahato, for this wrong noting of the next date as 11.11.2009 in place of 12.11.2009 in the application under Section 151 of the Code of Civil Procedure, the learned counsel of the High Court was misled and drafted revisional application taking the ground that the next date (12.11.2009) was not posted in the diary of the learned counsel of the lower court. According to Mr. Mahato this was a mistake on the part of the learned counsel and that the mistake was bona fide in view of the mistake crept in the application under Section 151 of the Code of Civil Procedure. According to him, though said revisional application was filed with an affidavit sworn by one Promode Kumar Gupta being son of the defendant petitioner but he was not to be blamed for this discrepancy and mistake. There is no denial that if a person is found to be guilty of making false affidavit to take undue advantage in a court of law then necessary proceeding under Section 340 of the Code of Criminal Procedure should be initiated against him to keep the dignity of the court of law as well as to punish the offender who has tried to obtain a favourable order from a court of law by making false statements. However, the court should not permit to use the provisions under Section 340 of the Code of Criminal Procedure for taking revenge by a party against his adversary just for making some wrong statements. The court should invoke the provisions of Section 340 of the Code of Criminal Procedure only if the court is of the opinion that such an action should be taken in the facts and circumstances of the case. In the referred case relating to Mr. R. Karuppan (supra) a suo moto proceeding was drawn against an advocate who made statements relating to the age of the then Chief Justice of India which were known to him to be false and which he believed to be false or at least did not believe to be true. In the case of Pritish (supra) a forged document was filed in connection with land acquisition case and the court is of the opinion that no lenient view should be taken against the culprit. Admittedly, the facts of both the referred case laws are quite different from the fact of the present one. As such those case laws have no application in this case. It appears from the submissions of Mr. Mahato that at the time of drafting of the petition of civil revisional application learned counsel was misled by the date (11.11.2009) appearing in the petition under Section 151 of the Code of Civil Procedure though in reality it was 12.11.2009. The explanation as given is a plausible one. Apart from that said wrong statements appearing in para 22 of the revisional application were not made to take any undue advantage in this case. Be that as it may I am of the opinion that the latches and / or negligence in the matter of drafting of this revisional application as well as swearing of affidavit in support of the same in the facts and circumstances of the present case are not so serious as to draw a proceeding under Section 340 of the Code of Criminal Proceeding. Accordingly, this application is hereby dismissed on contest. No costs. Urgent photostat certified copy of this order be supplied to the learned counsels of the parties, if applied for.