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2015 DIGILAW 764 (GAU)

Md. Abdul Sukur v. Md. Mufassil Ali Laskar

2015-06-17

HRISHIKESH ROY

body2015
ORDER : Heard Mr. Inam Uddin, the learned Counsel appearing for the petitioner who is the first defendant in the Title Suit No.44/2004. Also heard Mr. D. Mazumdar, the learned Senior Counsel appearing for the respondents. 2. The Title Suit No.44/2004 was filed in respect of the land originally owned by Late Basarat Ali, the predecessor in interest of the plaintiffs and the defendant No.2 Md. Abdul Musabbir Laskar. The family members of the plaintiffs and the 2nd defendant resided in the suit land by constructing their residences and the successors were in possession of their respective portion, on the basis of amicable arrangement amongst themselves. However the defendant No.1 attempted to take forcible possession of the land on 20.7.2004 and although they were successfully resisted then, upon further inquiry, the plaintiffs learnt of the Sale Deed No.6796 dated 10.8.1982, whereby the defendant No.1 purportedly purchased the Schedule-B land of the suit from the 2nd defendant. Therefore the T.S. No.44/2004 was filed to claim title over the land mentioned in the Schedule-A and to challenge the legal validity of the Sale Deed in respect of the Schedule-B land. 3. After the parties appeared, the issues in the suit were framed on 11.7.2005 but since the defendant No.1 was absent on the consecutive dates, the learned Trial Judge on 21.12.2006 ordered for ex parte proceeding against him. The defendant No.1 then applied for re-consideration of the order through his Petition No.331/07 but on 24.7.2007, the applicant was absent. Therefore his Petition No.331/07 was dismissed and the case was fixed for cross-examination of the PWs. 4. Eventually through the judgment dated 17.10.2007 (Annexure-A), the learned Munsiff, Hojai decreed the suit ex parte against the first defendant and declared the right, title and interest of the plaintiffs over the Schedule-A land. The Sale Deed challenged in the case in respect of the Schedule-B land was held to be inoperative and void. Consequently the defendants were restrained from dispossessing the plaintiffs from the Schedule-A land and further direction was given to the Revenue Authorities to cancel the mutation granted to the defendant No.1. 5. The defendant No.1 then filed the Application No.334/08 (Annexure-10) under Order IX Rule 13 of the CPC, for setting aside the ex parte order. Consequently the defendants were restrained from dispossessing the plaintiffs from the Schedule-A land and further direction was given to the Revenue Authorities to cancel the mutation granted to the defendant No.1. 5. The defendant No.1 then filed the Application No.334/08 (Annexure-10) under Order IX Rule 13 of the CPC, for setting aside the ex parte order. For his non-participation in the suit the defendant pleaded that he was in Nagaland from mid-December 2006 to 15.2.2007 and that is why he was unable to give requisite instruction to his engaged lawyer, because of which the Court on 21.12.2006 directed the suit to proceed ex parte. 6. But since the above application of the defendant No.1 was delayed by about 157 days, a separate application being Petition No.335/08 (Annexure-11) was filed under Section 5 of the Limitation Act for excusing the delay in approaching the Court. In his application, the defendant No.1 stated that he was seriously ill from 25.6.2007 to 15.10.2007 and again from 20.11.2007 to 28.2.2008 and therefore he was unable to file the Petition No.334/08 within 30 days. Accordingly prayer was made for condoning the delay of 157 days. However the learned Munsiff found the explanation given by the defendant No.1 to be inadequate and unconvincing and accordingly by his order dated 27.3.2009 (Annexure-14) dismissed the delay condonation application and consequently both the Petition No.335/08 and Petition No.334/08 stood dismissed. 7. Unhappy with the above order, the defendant No.1 filed the Misc. Appeal No.7/2009 to challenge the order dated 27.3.2009 in Misc.(J) Case No.13/2008. The merit of the appeal was considered by the learned Civil Judge and the Court observed that the Medical Certificate produced by the petitioner for condonation of delay doesn’t adequately explain all the days of his absence. The Court also noted that the defendant No.2 never challenged the ex parte decree although the appellant claimed to have purchased the Schedule-B land from the 2nd defendant. Accordingly upon due consideration, the Misc. Appeal of the defendant No.1 was dismissed on 30.11.2010 (Annexure-1) by the learned Civil Judge, Nagaon, leading to the present Revision Petition. 8. I have heard the learned Counsel for both sides and find that the defendant No.1 was never diligent about contesting the suit. Accordingly upon due consideration, the Misc. Appeal of the defendant No.1 was dismissed on 30.11.2010 (Annexure-1) by the learned Civil Judge, Nagaon, leading to the present Revision Petition. 8. I have heard the learned Counsel for both sides and find that the defendant No.1 was never diligent about contesting the suit. This conclusion is reached on account of the fact that the suit was ordered to proceed ex parte against the defendant No.1 on 21.12.2006 because of multiple defaults of the defendants and yet when he applied for vacating this order through Petition No.331/07, the applicant was absent on the fixed date to press his Petition No.331/07. 9. That apart, an unconvincing plea is made by the defendant for being absent on various fixed dates. That he was away at Nagalnd for about 2 months during certain duration of the case is not very convincing as required instruction to the engaged lawyer can always be given by a diligent litigant over phone or through other available options in these modern times. That apart, when the suit was decreed ex parte on 17.10.2007, the first defendant filed his application under Order IX Rule 13 only on 22.4.2008 and thereby there was a delay of 157 days in approaching the Court. Here also there is inadequate explanation in the defendant’s Petition No.335/08 and the illness pleaded by him for about 5½ months doesn’t appear to be convincing and truthful. Moreover one can’t also be oblivious of the right accruing to the plaintiffs on account of the decree passed in their favour and the failure of the first defendant to make a timely challenge to the said decree. 10. As all the above and other relevant factors were taken into account by the learned Court for passing the impugned order dated 30.11.2010 while dismissing the Misc. Appeal No.7/2009 and appreciating the logic and reasoning given by the Court, this Revision Petition found to be meritless and the same is accordingly dismissed. However the parties will bear their respective cost. 11. In view of the dismissal of the case, the Registry should sent a copy of this order to the Trial Court.