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2014 DIGILAW 307 (CAL)

Sukesh Ch. Kala v. Ahindranath Nath Kala

2014-04-02

SUBRATA TALUKDAR

body2014
Judgment : Subrata Talukdar, J. The principal challenge of the petitioners in C.O. 3382 of 2013 is to Order No. 327 dated 02nd August 2013 passed by the learned 1st Additional Civil Court (Jr. Division), Contai in Title Suit No. 200 of 1986 (previously numbered as Title Suit No. 636 of 1970). The petitioner is the plaintiff in the title suit. The title suit was filed by the predecessor-in-interest of the petitioner, his father (since deceased) Dhirendra Nath Kala for declaration and injunction. The Opposite Parties are the defendants in the said suit. The short point to be decided by this Court pertains to acceptance with objections of the report of the learned Survey Commissioner presented before the learned Trial Court. The order sheets filed by the learned Counsel for the opposite parties before this Court during the course of hearing show that from 2008 onwards the learned Trial Court was pleased to fix several dates calling for the report of the Survey Commissioner. By order No. 295 dated 08th September, 2011 the learned Trial Court was pleased to record as follows: “Plaintiffs filed hazira. No steps were taken by the defendant. Commissioner Report provisionally accepted. To 8th November 2011 for hearing ex parte”. Thereafter, by subsequent orders passed from the 03rd of November, 2011 to 05th March, 2012 the learned Trial Court was pleased to fix and then extend the time for ex parte hearing of the suit. Throughout the said period covered by the above dates there is no whisper in the said order sheets that the defendants took steps. Ultimately, the defendants filed a verified show cause on 26th April, 2012 wherein they prayed for condonation of their laches on the grounds stated therein. On the same date, i.e. on 26th April, 2012 the defendants filed another verified petition praying for vacating the order for ex parte hearing. Such facts are recorded in order No. 303 dated 26th April 2012 of the learned Trial Court. By order No. 306 dated 25th June, 2012 the learned Trial Court was pleased to allow the defendants an opportunity to file supporting medical papers with an affidavit in support of their prayer for setting aside the ex parte hearing. Such affidavit was filed by the defendants on 17th August, 2012 and recorded vide order no. 308. By order No. 306 dated 25th June, 2012 the learned Trial Court was pleased to allow the defendants an opportunity to file supporting medical papers with an affidavit in support of their prayer for setting aside the ex parte hearing. Such affidavit was filed by the defendants on 17th August, 2012 and recorded vide order no. 308. Thereafter by order No. 309 dated 10th September 2012 the learned Trial Court, after hearing both parties, allowed the petition of the defendants and vacated the order of ex parte hearing with costs assessed at Rs. 400/-. Both the parties were also granted the liberty to file written objection in respect of the report of the Survey Commissioner by modifying the order dated 8th September, 2011. Subsequently, by order impugned No. 327 dated 02nd August, 2013 the learned Trial Court was pleased to recall its order No. 295 dated 08th September, 2011. Sri Das, learned Counsel appearing for the petitioners submits that there is a long hiatus reflected in the conduct of the opposite parties-defendants between the period 08th September, 2011 to 10th September, 2012. Refreshing this Court through the order sheets of the learned Trial Court Sri Das points out that vide order No. 295 dated 08th September 2011 it was specifically recorded by the learned Trial Court that no steps were taken by the opposite parties-defendants and hence the report of the Survey Commissioner was provisionally accepted. He further submits that for the period of nearly 1½ years thereafter the opposite parties-defendants took no steps before the learned Trial Court and such fact is amply demonstrated in the order sheets of the relevant period. He vehemently assails the opportunity granted by the learned Trial Court to the opposite parties-defendants to file the written objection in respect of the report of the Survey Commissioner after the expiry of nearly 2 years from the date of provisional acceptance of the same. He points out that the ideal course of action for the learned Trial Court would have been to proceed with the hearing of the suit and it was always open to the opposite parties-defendants to cross-examine the learned Commissioner in respect of his report. By allowing opportunity to file written objection the suit has been unfortunately further delayed. He points out that the ideal course of action for the learned Trial Court would have been to proceed with the hearing of the suit and it was always open to the opposite parties-defendants to cross-examine the learned Commissioner in respect of his report. By allowing opportunity to file written objection the suit has been unfortunately further delayed. Per contra Sri Roy, learned Counsel appearing for the opposite parties brings places Rule 243 of the Civil Rules and Orders of the High Court, Calcutta. Rule 243 provides as follows: “The Court shall consider the objections, if any, of the several parties to the report of the Commissioner and may accept the report of any part of it or pass such orders as think fit under Order 26 Rule 10 (3) of the Code of Civil Procedure.” Sri Roy submits that in view of the language used in Rule 243 the learned Trial Court is under a statutory obligation to accept the written objection of the opposite parties-defendants. He further argues that the opposite parties-defendants were prevented by bona fide cause from not approaching the learned Trial Court during the period stated by Sri Das. Taking this Court through the application filed by the opposite parties-defendants for recalling the ex parte order of hearing and such application appears at page 60 of the present Civil Revisional Application, Sri Roy submits that the medical condition of the defendant taking steps in the suit did not permit him to attend the Court for the said period. Sri Roy further submits that in respect of the report of the Commissioner, which has been provisionally accepted by the learned Trial Court, the mandate of law is that any of the parties to the suit must examine the Commissioner in Court touching on any of the matters referred in the report or, as to the manner in which the Commissioner has made the investigation. Only on such legal mandate being fulfilled the report of the Commissioner can be treated as evidence in the suit. In this connection Sri Roy refreshes this Court on the provisions of Order 26 Rule 10 of the Code of Civil Procedure. Relying on the provisions of Order 26 Rule 10 of the Code of Civil Procedure Sri Roy Submits that by order No. 295 dated 08th September, 2011 the learned Trial Court only provisionally accepted the Commissioner’s Report. In this connection Sri Roy refreshes this Court on the provisions of Order 26 Rule 10 of the Code of Civil Procedure. Relying on the provisions of Order 26 Rule 10 of the Code of Civil Procedure Sri Roy Submits that by order No. 295 dated 08th September, 2011 the learned Trial Court only provisionally accepted the Commissioner’s Report. Thereafter by order No. 303 dated 26th April 2012 the learned Trial Court accepted the application of the opposite parties-defendants for vacating the order of ex parte hearing. Subsequently the learned Trial Court accepted the medical evidence submitted by the opposite parties-defendants for condoning their non-appearance during the relevant period as mentioned earlier in this judgment. Sri Roy submits that by providing the opposite parties-defendants an opportunity to contest the report of the learned Commissioner the learned Trial Court was only correctly following the provisions of law, particularly Order 26 Rule 10 of the Code of Civil Procedure. He points out that none of the parties shall be prejudiced if they are granted liberty to contest the Commissioner’s Report. He clarifies that in a suit for declaration it is important that both the contesting parties get an equal opportunity to question the Commissioner’s Report which is a vital document. In the absence of such opportunity it is likely that the party denied such opportunity shall suffer heavy prejudice. He finally submits that the provisions of law ordain that ultimately the learned Trial Court will decide whether to accept the report of the Commissioner after objections, if any. Only upon such acceptance such report can become evidence in the suit. Sri Roy also brings to the notice of this Court the language of Rule 243 of the Civil Orders and Rules of the High Court, Calcutta which have been already noticed above in this judgment. He emphasises that by the used of the word “Shall” in Rule 243 it is incumbent upon the Court before which the Commissioner’ Report is filed to afford opportunity to file objection by any of the contesting parties. In the absence of such opportunity the affected party is likely to suffer grave prejudice. In support of his argument Sri Roy relies upon the decision reported in AIR 1998 Andhra Pradesh ( Electro Flame Ltd. Hyderabad V. M/s. Mittal Iron Foundry Pvt. Ltd. Calcutta). In the absence of such opportunity the affected party is likely to suffer grave prejudice. In support of his argument Sri Roy relies upon the decision reported in AIR 1998 Andhra Pradesh ( Electro Flame Ltd. Hyderabad V. M/s. Mittal Iron Foundry Pvt. Ltd. Calcutta). The said Judgment at Para 4 reads as follows: “Therefore, I am of the view that if an application is made for examination of Commissioner, the Court has no other option but to examine the Commissioner and in case such a request is not made by any of the parties then only the report of the Commissioner can be part of the record and be piece of evidence. However, if a request is made for the examination of the Commissioner, the report can become part of evidence only after the Commissioner is examined” Therefore, according to Sri Roy there is no illegality and/or infirmity in the impugned order No. 327 dated 02nd August, 2013. Sri Roy has strenuously argued that the petitioners are estopped from challenging order No. 327 dated 02nd August 2013 in view of their failure to challenge the earlier order No. 309 dated 10th September 2012. By the earlier order dated 302 dated 10th September 2012 the learned Trial Court was pleased to allow both parties to file written objection to the report of the Survey Commissioner. According to Sri Roy, the order impugned No. 327 dated 02nd August, 2013 is only a continuation of the order No. 309 dated 10th September 2012. By the said impugned order No. 327 only the petition filed by the opposite parties-defendants explaining his medical condition and praying for recall of provisional acceptance of the report of the learned Commissioner vide order no. 295 dated 08th September 201 was allowed with cost of Rs. 500/- and the said order No. 295 was recalled. Heard Considered the submissions of both the parties. This court notices that vide order No. 309 dated 10th September 2012 the learned Trial Court recorded as follow:- “Both the contesting parties have filed the case is taken up for hearing. The petition is filed by the defendant on 17th August, 2012 for vacating the order ex parte hearing. The copy of the said petition is served to the learned Advocate of plaintiff this day in open Court objected to. The petition is filed by the defendant on 17th August, 2012 for vacating the order ex parte hearing. The copy of the said petition is served to the learned Advocate of plaintiff this day in open Court objected to. Heard learned Advocate at both side at length peruse the petition as well as materials on record learned Advocates for the plaintiffs submits before this Court that the petition was allowed with heavy cost considering the all aspects the prayer for vacating the ex parte hearing was allowed with cost of Rs. 400/-both parties are liberty to file W.O if any in respect of the Commissioner Report by modifying the order dated 08th September, 2011.” In the opinion of this Court the submissions of the learned Advocate for the petitioner-plaintiff before the learned Trial court as recorded in the order dated 10th September, 2012 cannot be ignored. The only prayer made by the learned Advocate of the petitioner-plaintiff as recorded by the learned Trial Court was to the effect that the application of the opposite parties-defendants for setting aside the order of ex parte hearing “may be allowed (emphasis supplied) “with heavy cost”. It does not appear and neither there is any argument from the petitioner-plaintiff that order No. 309 dated 10th September, 2012 was challenged by the petitioner-plaintiff. The contents of the order indicate that the learned Advocate for the petitioner-plaintiff was not averse to the Court allowing the prayer of the opposite parties-defendants for vacating the ex parte hearing subject to payment of heavy cost. Such costs were assessed at Rs. 400/-, paid by the opposite parties-defendants on 08th October 2012 and such fact is recorded by the learned Trial Court in its order No. 310 of the same date. This court therefore is of the view that the petitioner-plaintiff, in view of his recorded stand before the learned Trial Court vide order no. 309 dated 10th September, 2012, is estopped from raising the point of acceptance of the defendant’s application for setting aside the ex parte hearing. As noted previously in this judgment the petitioner-plaintiff does not appear to have challenged the order No. 309 dated 10th September 2012. This Court is also in agreement with Sri Roy that the order impugned No. 327 dated 02nd August, 2013 is only a continuation of order No. 309 dated 10th September, 2012. As noted previously in this judgment the petitioner-plaintiff does not appear to have challenged the order No. 309 dated 10th September 2012. This Court is also in agreement with Sri Roy that the order impugned No. 327 dated 02nd August, 2013 is only a continuation of order No. 309 dated 10th September, 2012. The said impugned order No. 327 dated 02nd August 2013 stands on the reasoning expressed by the learned Trial Court vide order no. 309 dated 10th September,2012. In view of the admitted position of non-challenge to order no 309 dated 10th September,2012 by the petitioners-plaintiffs a subsequent and independent challenge to the order impugned no. 327 dated 02nd October, 2013 is hit by the principle of stare decisis. Furthermore, this Court is inclined to accept the position of law has espoused by Sri Roy that at the stage of provisional acceptance of the report of the Survey Commissioner the Court, before whom such report is filed, is under a duty to accept objection to such report and afford the party an opportunity to cross-examine the Commissioner, in the event the party is so advised.. For the above reasons this Court finds no reason to interfere with the order impugned No. 327 dated 02nd August, 2013 passed in Title Suit no. 200 of 1986 by the learned First Additional Civil Court (Senior Division), Contai. C.O. No. 3382 of 2013 is accordingly dismissed. There will be no order as to costs. However, in view of the fact that the suit is originally one of 1970 this Court directs the learned Trial Court to expedite the hearing of the same and complete such hearing peremptorily within a period of six months from date. Needless to state the learned Trial Court will conclude such hearing subject to its calendar and on its own merits.