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2015 DIGILAW 679 (GAU)

Losman Prasad Roy v. Narayan Choudhury

2015-06-03

SUMAN SHYAM

body2015
JUDGMENT : 1. Heard Mr. B. Banerjee, learned Senior Counsel appearing for the appellants. None appears for the respondent despite service of notice on them. 2. This Second Appeal has been filed being aggrieved by the judgment and order dated 12.03.2003 passed by the learned Civil Judge (Senior Division), Dhubri in Title Appeal No.17/1999 dismissing the appeal and thereby affirming the judgment and order dated 14.05.1999 passed in Title Suit No.322/1991 by the learned Civil Judge (Junior Division) No.1, Dhubri. 3. The facts leading to the impugned judgment and order passed by the learned First Appellate Court is that the present appellants as plaintiffs had instituted Title Suit No.322/1991 in the Court of learned Munsiff, Dhubri, inter alia, praying for a decree declaring their right, title and interest over the suit land; a decree for eviction of the defendant by demolishing the house and structures existing over the suit land and for other consequential reliefs. It appears that the suit filed by the plaintiffs was dismissed for default by the order dated 14.05.1999 passed by the trial Court by rejecting the prayer of the plaintiffs for adjournment so as to produce evidence on their behalf. Being aggrieved by the order dated 14.05.1999, the plaintiffs had preferred Title Appeal No.17/1999 in the Court of Civil Judge (Senior Division), Dhubri. By the judgment and order dated 12.03.2003 the learned First Appellate Court had dismissed the appeal filed by the present appellants holding that since the plaintiffs had failed to adduce evidence despite availing adjournments on as many as 34 occasions, hence the learned trial court had rightly dismissed the suit by the impugned order and the same does not call for any interference. 4. Being aggrieved by the appellate judgment and order dated 12.03.2003 the plaintiffs as appellants had approached this Court by filing the present Second Appeal which was admitted to formal hearing by framing the following substantial question of law:- “Whether a Civil Court can dismiss a suit for non-prosecution, rejecting an application for adjournment.” 5. Mr. Banerjee, learned Senior Counsel appearing for the appellants, submits that a bare perusal of the pleadings contained in the plaint would go to show that his clients have a very strong case to go for trial. However, under some unforeseen circumstances, completely beyond the control of the plaintiffs, the appellants/plaintiffs could not adduce evidence before the learned trial Court on the earlier occasion. However, under some unforeseen circumstances, completely beyond the control of the plaintiffs, the appellants/plaintiffs could not adduce evidence before the learned trial Court on the earlier occasion. He further submits that his clients are serious about pursuing the suit and for bringing it to a logical conclusion. As such, if the order under appeal is not set aside, then, in that event, the plaintiffs will be permanently debarred from pursuing their remedy which they are entitled to under the law. Mr. Banerjee submits that, for ends of justice, the plaintiffs may be given an opportunity to adduce evidence and prosecute the suit before the learned trial Court. 6. I have considered the submissions made by Mr. Banerjee. A conjoint reading of Section 2(2) read with Section 96 of the CPC would go to show that the order dated 14.05.1999 passed by the learned trial Court dismissing the plaintiffs’/appellants’ suit for default is not an appealable decree or order and, therefore, neither any Regular First Appeal nor any Regular Second Appeal would lie against the said order. The only remedy available to the plaintiffs/appellants against the said order dated 14.05.1999 was to prefer an application under Order IX Rule 9 CPC praying for setting aside the order of dismissal for default by furnishing sufficient explanation. Such being the position under the law, the impugned judgment and order dated 12.03.2003 passed by the learned First Appellate Court was without jurisdiction since the appeal itself was not maintainable. Consequently, there would be no need to adjudicate the Second Appeal on merit by answering the substantial question of law. 7. Having regard to the fact that the plaintiffs had not pursued the appropriate remedy as available to them against the order dated 14.05.1999, for the ends of justice, this Court is inclined to dispose of the present appeal by granting liberty to the appellants/plaintiffs to approach the learned trial Court by making appropriate application under Order IX Rule 9 CPC praying for setting aside the order of dismissal dated 14.05.1999 by furnishing sufficient explanation, if so advised. If any such application is filed by the appellants/plaintiffs the same would be considered and disposed of on merit without being influenced by any observation made by the learned First Appellate Court in the judgment and order dated 12.03.2003. 8. This Second Appeal stands allowed to the extent indicated above. Registry to send back the LCR.