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2016 DIGILAW 130 (CAL)

Pinaki Haldar v. Kallol Patra

2016-02-04

INDRAJIT CHATTERJEE

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JUDGMENT : Indrajit Chatterjee, J.- The present application has been filed under Article 227 of the Constitution of India assailing the Order No.407 dated 11.05.2013 passed by the learned Civil Judge, Junior Division, 6th Court, at Howrah in Misc. Case No.17 of 2012 arising out of Misc. Case No.15 of 2012. The fact relevant for the purpose of hearing of this application can be stated in brief thus: That the petitioner who is the plaintiff before the learned trial court filed a suit for eviction against the predecessor in interest of the petitioner and the number of the said suit is Title Suit No.64 of 1998 now pending before the Civil Judge, Junior Division, 6th Court at Howrah. The said Title Suit was decreed on 05.08.2010. The predecessor in interest of the present petitioner that is Dinesh Haldar filed one application under Order 9 Rule 13 of Civil Procedure Code, 1908 (hereinafter called as the said Code) in which he prayed for setting aside of the ex parte decree passed by the learned Trial Judge. In view of the said application under Order 9 Rule 13 of the C.P.C a Misc. Case was started being Misc. Case No.15 of 2010. It is further case of the present petitioner that during pendency the said Misc. Case the sole defendant/predecessor in interest of the petitioner, namely, Dinesh Haldar died on 07.10.2011. One petition was filed by the present petitioner on 03.01.2012 before that court for substitution of the legal heirs of Dinesh Haldar but, unfortunately the same was misplaced from the record and ultimately one application in Order 22 Rule 9 of the Civil Procedure Code was filed on 11.05.2012 for setting aside the amendment of the deceased Dinesh Haldar. The copy of the said application has been marked as Annexure A of the application. Admittedly that application under Order 22 Rule 9 of the C.P.C was filed after expiry of 150 days from the death of that Dinesh Haldar and as such one application was preferred under Section 5 of the Limitation Act praying for condonation of delay in filing of the aforesaid application. The copy of the application has been marked as Annexure ‘B’ of the petition. Unfortunately, for the present petitioner the learned Trial Judge vide the impugned order dated 11.05.2013 was pleased to reject the prayer of the present petitioner and such present revisional application has been moved. The copy of the application has been marked as Annexure ‘B’ of the petition. Unfortunately, for the present petitioner the learned Trial Judge vide the impugned order dated 11.05.2013 was pleased to reject the prayer of the present petitioner and such present revisional application has been moved. I must make it clear that now this court is answering the claim of the present opposite party whether this application is maintainable or not. Thus, I am not touching the merit of the case and if any observation is made that will not be binding on the trial court or court of appeal being my prima facie observation. Thus, to determine whether the present application is maintainable or not, I am to say that the decision of the Apex Court as relied upon by the learned Advocate of the present petitioner as reported in (2011) 12 SCC Page 773 will very much apply in the present case. The main point involved in this is case is whether the present revisional application is maintainable even though one Misc. case was dismissed for default and the Section 5 application which was converted to Misc. Case No.17 of 2012 was rejected on merit. I have gone through the decision of the Apex Court about which I have noted. In paragraph 10 (f) of the said decision the Apex Court made it clear that after one application under Order 22 Rule 9(2) of the Code is dismissed or abated, the said abatement order can be challenge in appeal under Order 43 Rule 1 (k) of the Code. In that decision in paragraph 16 of that case the Apex Court decided that no appeal is provided against an order under Order 22 Rules 3 and 5 of the Code either under Section 104 or Order 43 Rule 1 of the Code and Clause K of the Rule 1 of Order 43 of the Code, however, provides that an appeal shall lie under Section 104 of the Code from an order under Rule 9 of Order 22 against the refusal to set aside the abatement or dismissal of a suit. Taking the risk of repetition I can say that in the said judgment the Supreme Court took care of the eventualities which may crop up at the time of dismissal of one application under Order 22 Rule 9(2) of the C.P.C. As per Sub-Rule 2 of Rule 9 of Order 22 while permitting the legal representative to set aside the abatement or dismissal under Order 22 of the Code and Order 9(2) refusal to set aside an amendment or dismissal of the said case is contemplated, only whether there is abatement or dismissal under Order 22 and an application has been made by a legal representative such abatement or dismissal, but, where a person claiming himself to be the legal representative as already filed an application under Order 22 Rule 3 within the period of limitation and such application has been dismissed on the ground that he is not a legal representative, there is no question of such filing of any application under Order 22 Rule 3 for setting aside of the abatement or dismissal. This court is not unmindful of the decision of the Special Bench of this court as reported in 1988 Cal Page 358 wherein this Court also considered the provisions of Order 9 Rule 4, Order 9 Rule 3 and Order 9 Rule 9 vis-à-vis the Articles 137 and 141 of the Limitation Act. This Court is aware the submission made by the learned Advocate of the present petitioner that as per this decision one revisional application is very much maintainable wherein the said Misc. case was dismissed on merit or otherwise. Thus, to sum up such a revisional application as filed before this Court is not maintainable but considering the decision of the Apex Court as reported in (2011) 12 SCC 773 , about which this Court has discussed much is of the opinion that as against the order passed in a Misc. case only one appeal will lie and no a revisional application under Article 227 of the Constitution of India. It may be noted that already the present petitioner has filed one Misc. Appeal No.111 of 2012 before the learned Additional Judge, Howrah and in that appeal, the impugned order has been challenged. Thus, considering the discussion so long made and the legal position involved. It may be noted that already the present petitioner has filed one Misc. Appeal No.111 of 2012 before the learned Additional Judge, Howrah and in that appeal, the impugned order has been challenged. Thus, considering the discussion so long made and the legal position involved. This court is satisfied that this revisional application under Article 227 of the Constitution of India is not maintainable. Thus, the said application is dismissed on without cost. Let a copy of this order be forwarded to the learned Civil Judge, Junior Division, 6th Court, at Howrah in Misc. Case No.17 of 2012. The said trial court must see that this litigation which is already 10 years old be disposed of as early as possible.