Badal Nama, Sri Sankar Nama and Sri Sadhan Nama v. Rupiya Bibi
2014-02-03
S.TALAPATRA
body2014
DigiLaw.ai
JUDGMENT Subhasis Talapatra, J.:- This is a petition filed under Section 114 read with Order XLVII of the Code of Civil Procedure, 1908 for review of the judgment and order dated 09.12.2013 passed by this Court in CRP No. 87 of 2012. The Civil Revision Petition being CRP No. 87 of 2012 filed under Section 115 of the CPC had questioned the order dated 30.06.2012 passed by the Civil Judge, Junior Division, Sonamura, West Tripura in Civil Misc. Case No. 10 of 2012 arisen from Title Suit (P) No. 11 of 2008. By the said order dated 30.06.2012, a petition filed by the review petitioners under Section 5 of the Limitation Act for condoning the delay of 812 days in filing the application, to set aside the ex parte judgment and decree (preliminary) passed on 07.12.2009, under Order IX, Rule 13 of the CPC was rejected on the ground that the causes assigned in the said petition did not provide the sufficient cause for allowing the said petition for condonation. Moreover, it has been observed in that order that incorrect/false statements dehors the records were made in the said petition. A simple reading of the petition under Section 115 of the CPC, 1908 could reveal that no ground as such was taken to show that any grave procedural flaw was committed by the Civil Judge or there had been any miscarriage of justice. 2. The Civil Judge, Jr. Divn., Sonamura, West Tripura having reference to the judgment of the apex court in Binod Bihari Singh v. Union of India reported in (1993) 1 SCC 572 had rejected the said petition for condonation for resorting to the false pleas. 3. By the impugned judgment this Court has elaborately scrutinized the records and analysed the grounds taken in the Civil Revision Petition and thereafter held that, "Usually, the Courts do exercise their discretion for condoning the delay leniently, but when from the records it surfaces that the lapse or inaction is insurmountable or the petitioner has resorted to a false plea, manifest on the face of record, the Court would decline to condone the delay." No infirmity having been found in the order, questioned in the Civil Revision Petition, that petition was dismissed by the impugned judgment and order dated 09.12.2013. 4. Mr. Das, learned senior counsel assisted by Mr.
4. Mr. Das, learned senior counsel assisted by Mr. D. Chakraborty, learned counsel for the petitioners has submitted that there is no provision in the CPC which makes it mandatory for the Court to pass a decree in favour of the plaintiff straightway for not filing the written statement. Order VIII, Rule 5 of the CPC may not be availed of to sustain the plea that where no written statement is submitted the court is bound to accept the pleadings in the plaint and pass a decree straightway. This plea is not only a new plea, even that was not projected in the Civil Revision Petition or in the petition for condoning the delay filed before the Civil Judge, Jr. Divn. That apart, Mr. Das, learned senior counsel has referred to a decision of the apex court in Modula India v. Kamakshya Singh Deo reported in AIR 1989 SC 162 where it has been held as under: ...the defendant should be allowed his right of cross examination and arguments. But we are equally clear that this right should be subject to certain important safeguards. The first of these is that the defendant cannot be allowed to lead his own evidence. None of the observations or decisions cited have gone to the extent of suggesting that, in spite of the fact that the defence has been struck off, the defendant can adduce evidence of his own or try to substantiate his own case. 5. This Court does not find any relevance of this decision in the context of the challenge as projected by the review petitioners. On reading of the entire petition for condonation of delay or on scrutinizing the records relating to the Title Suit (P.) No. 11 of 2008, it did not reveal that the review petitioners had made any endeavour to cross examine the respondents or to place their argument. On the contrary, it has appeared from the record that the review petitioners did not even know about the ex parte judgment, according to their version, before 15.02.2012. Such plea would have been available to the parties who were participating in the proceeding despite their defence had been struck off. Thus, this plea is entirely irrelevant in the context of this case.
Such plea would have been available to the parties who were participating in the proceeding despite their defence had been struck off. Thus, this plea is entirely irrelevant in the context of this case. Moreover, the Modula India (supra) has been considered while passing the impugned judgment and it has been held for the same reasons that decision had no relevance. 6. The scope and ambit of review is no more res integra, rather it has become well delineated. In Union of India v. Sandur Manganese & Iron Ores Ltd. and Ors. reported in AIR 2013 SCW 2905 it has been held that: In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction. Hence, in review jurisdiction, the court shall interfere only when there is a glaring omission or patent mistake or when a grave error has crept in the impugned judgment, which we fail to notice in the present case. As no such glaring omission or patent mistake has been identified by the review petitioners, this review petition deserves to be dismissed. Accordingly, it is dismissed. However, there shall not be no order as to costs in the circumstances of the case.