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2014 DIGILAW 18 (CAL)

Namita Mondal v. Gorachand Paul @ Dr. G. C. Paul

2014-01-15

TARUN KUMAR GUPTA

body2014
Judgment : Tarun Kumar Gupta, J. The original revisional application C. O. No.1630 of 2010 arose out of an order dated 16th of June, 2009 passed by learned trial court in Title Suit No.477 of 1995. As none appeared for the petitioner, the same was dismissed for default by this court vide order dated 13th of January, 2011. This application being CAN No.1860 of 2013 has been filed praying for restoring said revisional application in its original file and number on recalling order of dismissal for default dated 13th of January, 2011 on condonation of delay. Initially the petitioner took the plea that learned advocate of the petitioner missed the matter in the list resulting its dismissal for default on 13th of January, 2011. It was further stated therein that the daughter of the petitioner met learned advocate of the High Court on 6th of February, 2013 to ascertain how ex parte hearing in the court below could be fixed as there was an order of stay in this case by the Hon’ble High Court, and that thereafter learned advocate on record in the High Court through an officer of the department learnt about said order of dismissal for default and that the petitioner for the first time came to learn about said order of dismissal for default on 9th February, 2013. Thereafter, the petitioner through her learned counsel of this Court filed this application praying for recalling of said order of dismissal on condonation of delay. The O. P. filed an affidavit-in-opposition alleging that learned advocate on record sent a notice dated 9th of April, 2013 enclosing a copy of the application wherein it was alleged that the petitioner met her learned counsel at High Court on 9th of February, 2012 to intimate about an ex parte proceeding in the suit in the trial court and that from the information slip dated 10th of February, 2012 it was learned that revisional application was dismissed for default on 13th of January, 2011. The copy of said application was made annexure – A in said affidavit-in opposition. The copy of said application was made annexure – A in said affidavit-in opposition. Another document namely a copy of the adjournment petition dated 19.11.2012 filed by the petitioner in the court below was made annexure – B wherefrom it appears that the petitioner prayed for adjournment in the court below on 19.11.2012 as her revisional application was dismissed for default and that petitioner has already filed an application for restoration of said revisional application and that till disposal of said restoration application the matter should be adjourned in the court below. In the affidavit-in-reply the petitioner tried to explain said anomaly. According to her it was true that she came to her lawyer Smt. Anupama Hazra at High Court on 9th of February, 2012 as learned trial court was trying to proceed the matter ex parte. Thereafter, after obtaining information slip from office it was learnt on 10th of February, 2012 that the revisional application was dismissed for default on 13th of January, 2011. It is her further case that before affirmation of said application she became ill and could not come to court and also could not inform her senior counsel Shri Jiban Ratan Chatterjee. It is further alleged that she was not aware that she was required to come to the High Court again for affirmation of said restoration application. It is her case that as learned trial court further proceeded with the ex parte hearing, she again came to the High Court and met her senior counsel Shri Jiban Ratan Chatterjee who was not aware of the previous developments and after obtaining fresh information slip from the department the present restoration application was drafted and filed. She took the plea that though she was aware of the order of dismissal on 10th of February, 2012 but she did not understand the technicalities of the limitation and accordingly, there was misstatement in the restoration application regarding the first date of knowledge about dismissal of the revisional application for default. It was also alleged that no notice was served upon learned counsel for the O. P. by registered post as alleged and that the entire brief of the case was lost from the High Court. It was also alleged that no notice was served upon learned counsel for the O. P. by registered post as alleged and that the entire brief of the case was lost from the High Court. It was further alleged that learned advocate on record was also ill for considerable period and there was communication gap in between the client and learned advocate on record, and in between learned senior counsel and petitioner resulting misstatement in the petition regarding the date of knowledge. The O. P.s. have filed an affidavit-in-opposition against the affidavit-in-reply denying the above therein and specifically alleging that though the petitioner had knowledge of the order of dismissal for default on 10th of February, 2012 but she falsely stated in her application for restoration said date of knowledge as 9th of February, 2013 and that the petitioner was guilty of per jury. It was further alleged that the petition for restoration of the revisional application on condonation of delay was hopelessly barred by limitation and the explanation given therein were false and not acceptable. It is further averred that as no separate application for condonation of delay was filed, the application for restoration should have been dismissed in limine. Learned counsel of both sides have made submissions in support of claims of the respective parties. Mr. Chatterjee in addition referred the judgments of Hon’ble Apex Court in the case of Ram Nath Sao & Ors. Vs. Gobardhan Sao & ors. as reported in AIR 2002 SC 1201 , judgments of this High Court passed in the case of ICICI Bank Ltd. Vs. G. V. Pratisthan 2006 (1) CHN 164 and Subrata Ghosh Vs. Malaya Ghosh & Ors. in C. O. No. 2394 of 2008 to impress upon this Court that the applications for restoration of cases dismissed for default and application for condonation of delay should be allowed liberally, if required, by awarding cost to the other side so that the dispute may be resolved on merit. The technical point that the application for restoration should be dismissed being time barred for not filing a separate application for condonation of delay is not entertainable as the petitioner has affixed sufficient stamps for two applications in the original application of restoration of revisional application on condonation of delay. The technical point that the application for restoration should be dismissed being time barred for not filing a separate application for condonation of delay is not entertainable as the petitioner has affixed sufficient stamps for two applications in the original application of restoration of revisional application on condonation of delay. There is no denial that at the time of disposing of an application praying for restoring the case on vacating the order of dismissal for default and / or praying for condonation of delay the court should make liberal approach. This is required to advance substantial justice when no negligence, nor inaction, nor want of bona fides is imputable to the petitioner. But we must not forget that a substantive right is accrued to the other side on passing of an order of dismissal for default. As such, those applications though required to be treated liberally should not be allowed just on asking. The petitioner has to show, at least prima facie, that he was not negligent in the matter of filing of the application, and / or that no inaction and / or want of bona fides can be imputed to him. In the case in hand, admittedly, the petitioner came to learn about the order of dismissal of default dated 13th of January, 2011 on 10th of February, 2012. According to her own version, at that point of time she contacted her advocate on record for taking necessary steps but could not pursue the matter on account of her as well as of her counsel’s alleged illness and that thereafter in 2013 she contacted her senior counsel Sri Jiban Ratan Chatterjee who without knowing the earlier incident drafted the application after obtaining further information slip from office wherein her date of knowledge was wrongly stated as 9th of February, 2013. No medical certificate either of the petitioner or of her learned counsel was filed in support of those averments. Even if these averments are accepted on their face value still it cannot be said that the petitioner was not guilty of negligence. Rather it is apparent from the aforesaid conduct of the petitioner that she was guilty of inaction also. The entire incident if looked in a detached manner reveals that the petitioner was guilty of latches and negligence in the matter of filing the application for restoration together with a prayer for condonation of delay. Rather it is apparent from the aforesaid conduct of the petitioner that she was guilty of inaction also. The entire incident if looked in a detached manner reveals that the petitioner was guilty of latches and negligence in the matter of filing the application for restoration together with a prayer for condonation of delay. The petitioner was also guilty of taking most casual approach in the matter. As a result, she made contradictory and wrong averments regarding her first date of knowledge about the order of dismissal for default of the main revisional application. A person who takes such casual approach in the matter by making contradicting and wrong statements is not entitled to get an order of restoration on condonation of delay. There is no dispute that the petitioner made two contradicting statements regarding the actual date of her knowledge about the order of dismissal for default. In the main revisional application it was stated to be 9th of February, 2013 whereas in the affidavit-in-opposition she had admitted that said knowledge went back to 10th of February, 2012. However, it came out that the petitioner being an aged lady took very casual approach in the matter of filing of the applications and making averments in those applications. The mere fact that the petitioner made said contradictory statements at two different stages in a judicial proceeding, is not by itself sufficient to justify prosecution for per jury. The court while passing an order for starting a prosecution per jury should be of the opinion that said prosecution should be done in the interest of justice in the facts of a particular case. I have already stated that the petitioner being an old lady took very casual approach in the matter of filing of the petition of restoration with the prayer for condonation of delay. Her casual approach was mainly responsible for making two contradictory statements regarding the date of knowledge of the order of dismissal for default. I do not think that this is a fit case for initiating a prosecution for per jury. In view of the discussions made above the application praying for restoration on condonation of delay is hereby dismissed on contest. However, I pass no order as to costs.