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2015 DIGILAW 804 (CAL)

Sreejit Kumar Tagore v. Radha Kissen Bhatter

2015-09-23

DEBANGSU BASAK

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Judgment Debangsu Basak, J. The defendant no. 11 seeks recalling of a judgment dated March 20, 2015 resulting in a decree passed in the suit. It is contended on behalf of such defendant that, he was denied a reasonable opportunity of hearing on March 20, 2015. The order records statements which have not been made by the learned Advocates appearing on behalf of the defendant. The order also does not correctly record the events occurring on that date in Court. The defendant seeks correction of such portions of the order. The defendant also seeks an opportunity to be heard as the incidents narrated in the application, according to the defendant, did not allow such defendant a reasonable opportunity of hearing. On the date when the application was taken up for hearing I did not have the determination to hear a suit. However, since the application seeks rectification of recordings made in the order passed by me relying on All India Reporter 1982 Supreme Court page 1249 (State of Maharashtra v. Ramdas Shrinivas Nayak & Anr.), 2003 Volume 9 Supreme Court Cases page 519 (Shankar K. Mandal & Ors. v. State of Bihar & Ors.) and 2008 Volume 2 Supreme Court Cases page 95 (Mohd. Akram Ansari v. Chief Election Officer & Ors.) it is contended that, the application is maintainable before. On the corrections in the order it is submitted that, the learned Senior Advocate appearing on behalf of the defendant did not ask for recusal of the Court in the matter as recorded in the order. The narration with regard to the cross-examination of the witness and the prayer for adjournment has also not been recorded correctly. The incident with regard to the learned Senior Advocate leaving the Court on the ground of being physically unwell has also not been recorded correctly. Lastly it has been submitted on behalf of the defendant that, the defendant seeks an opportunity of hearing as the learned Senior Advocate was not in a position to address the Court on the date of hearing. An opportunity of hearing would sub-serve the interest of justice. Various paragraphs of the application as well as the affidavit-in-opposition have been placed on behalf of the defendant to contend that, material allegations made in the application of the defendant have not been denied by the plaintiff. The application is opposed on behalf of the plaintiff. An opportunity of hearing would sub-serve the interest of justice. Various paragraphs of the application as well as the affidavit-in-opposition have been placed on behalf of the defendant to contend that, material allegations made in the application of the defendant have not been denied by the plaintiff. The application is opposed on behalf of the plaintiff. It is pointed out that the order resulting in the decree sought to be recalled is of March 20, 2015. The application for recall has been filed on May 8, 2015 that is, after one and half months. The application does not narrate the facts correctly. In fact, neither the learned Senior Advocate at any point of time nor the learned Advocate on record for the defendant no. 11 had prayed for adjournment of the hearing of the suit. It is contended that, the averments made in the paragraphs 12 and 13 in the petition are not correct. The prayers made in the petition are not justified. The petition as it stands does not call for interference. The Order dated March 20, 2015 had left the adjudication of mesne profits to the Special Referee appointed. The defendant no. 11 had participated before the Special Referee unconditionally and, therefore, there is no reason for recall of the order. In reply learned Senior Advocate for the defendant no. 11 submits that, the material allegations made in the petition have not been denied by the plaintiff. He points out the averments made in the petition and the manner in which such averments been dealt with in the affidavit in opposition. In reference thereto, he contends that there has not been a denial of the material averments. He reiterates that an opportunity of hearing be granted to his client. He repeatedly clarifies that although various grounds have been made in the petition he is not pressing all of them and he is limiting the prayers to an opportunity of hearing. I have considered the rival contentions of the parties and the materials made available on record. Ramdas Shrinivas Nayak & Anr. (supra), Shankar K. Mandal & Ors. (supra) and Mohd. I have considered the rival contentions of the parties and the materials made available on record. Ramdas Shrinivas Nayak & Anr. (supra), Shankar K. Mandal & Ors. (supra) and Mohd. Akram Ansari (supra) are of the view that, a party which has a grievance that points raised by such party have not been appropriately dealt with by a learned Judge must approach the same Court which had passed the judgment and urge that such points have not been dealt with appropriately. The learned Judge delivering the judgment and order of which corrections are sought for would alone have the jurisdiction to hear and dispose of such application if the learned Judge is available. In view of the ratio laid down by the authorities cited, the application is, therefore, maintainable before me although I do not have the determination to hear a suit on the date of hearing of the application. The defendant no. 11 has contended in its petition that my Judgment dated March 20, 2015 resulting in the decree passed in the suit has not dealt with the points raised by such defendant appropriately. To the best of my recollection I have correctly narrated the incidents happening in Court on that date to the best of my ability in my Judgment dated March 20, 2015. This I say with all due respect and deference to the learned Senior Advocate appearing on behalf of the defendant no. 11. I would have proceeded to dismiss the application on such ground only. However, I propose not to do so, the reason being that justice must not only be done but it must be seen to be done. In the course of hearing of the suit a prayer for adjournment was made only on behalf of the defendant no. 6 that too much prior to the turn of the defendant no. 11 to advance arguments. Such prayer was disallowed. The defendant no. 6 is not before me to contend that the prayer for adjournment was disallowed wrongly. On the date of the hearing, again with the deepest of respect to the learned Senior Advocate appearing on behalf of the defendant no. 11, he did not for once ask for any adjournment of hearing on any ground whatsoever. Not even when he had felt unwell as he claims. On the date of the hearing, again with the deepest of respect to the learned Senior Advocate appearing on behalf of the defendant no. 11, he did not for once ask for any adjournment of hearing on any ground whatsoever. Not even when he had felt unwell as he claims. Neither did his Advocate on record seek any adjournment subsequent to the learned Senior Advocate having the Court or at any point of time. The Advocate on record for the defendant no. 11 had proceeded to ague the matter on merits without requesting for adjournment. On the conclusion of his argument I had repeatedly asked the Advocate on record of the defendant no. 11 as to whether he was satisfied with the hearing given to which the Advocate on record had maintained the stand that he was satisfied. Somehow the defendant no. 11 carries an impression of not being afforded a reasonable opportunity of hearing. He did not have the services of the learned Senior Advocate engaged by him for the full length of the hearing for reasons beyond his control. He should therefore be allowed one more opportunity. A further opportunity of hearing to the defendant no. 11 would also be in consonance with the principle that justice should not only be done but seen to be done. In such circumstances, G.A. No. 1576 of 2015 is allowed. The Judgment dated March 20, 2015 resulting in the decree passed in the suit is recalled. No order as to costs.