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2017 DIGILAW 1115 (GAU)

Mahuya Dey v. Kanak Choudhury and Sons

2017-08-16

KALYAN RAI SURANA

body2017
JUDGMENT : Kalyan Rai Surana, J. 1. Heard Mr. P.K. Roy Choudhury, the learned counsel for the petitioners and Mr. R.K. Bhuyan, the learned counsel for the respondent. The challenge in this application under Article 227 of the Constitution of India are the orders dated 11.05.2017 and 6.6.2017, passed by the learned Civil Judge No. 1, Kamrup (Metropolitan), Guwahati, in connection with T.A. No. 131/2013. By the order dated 06.06.2017, the application filed by the petitioners under Order XLI Rule 27 CPC was closed. By order dated 6.6.2017, the petition for recalling the order dated 11.5.2017 was refused. 2. The respondent is the landlord of the petitioners in respect of the tenanted premises. The petitioner No. 1 is the proprietress of Petitioner No. 2 firm. The petitioners filed TS No. 474/2010 for permanent injunction for restraining the respondent from interfering with peaceful possession of the tenanted premises. The said suit was tried by the Court of the learned Munsiff No. 2, Kamrup (Metropolitan), Guwahati. The respondent contested the suit by filing written statement with counterclaim, seeking ejection of the petitioners on the ground that the petitioners was a defaulter and claiming that the suit premises was bona fide required by the respondent The suit was dismissed and the counter-claim was allowed by judgment and decree dated 20.06.2013. 3. Aggrieved by the decree for ejection as passed in the counter-claim, the petitioners preferred an appeal, which was numbered as T.A. No. 131/2013. The said appeal was dismissed by the Court of the learned Civil Judge No. 1, Kamrup (Metropolitan), Guwahati, by judgment and decree dated 11.08.2015. 4. Aggrieved by the aforesaid first appellate judgment passed in T.A. No. 131/2013 by the Court of the learned Civil Judge No. 1, Kamrup (Metropolitan), Guwahati, the petitioners filed a revision before this Court, which was numbered as CRP 398/2015. This Court, by judgment and order dated 04.02.2006, allowed the revision by remanding the matter back to the First Appellate Court by setting aside the impugned First Appellate judgment by finding force in the submission of the learned Counsel for the petitioners that the petitioners was entitled to an answer from the lower Appellate Court as regards the merit of their application filed under Order XLI Rule 27 CPC at the time of the disposal of their appeal. The same having not been done, the appellate order was held to be not in consonance with the provisions of Order XLI Rule 31 CPC, as such, the same was set aside. The matter was remanded back to the First Appellate Court with a direction to hear the appeal afresh by bearing in mind the principles of law enshrined in Order XLI Rule 31 and Order XLI Rule 27 CPC. Direction was given to dispose of the appeal within 3 months by taking up the hearing on day- to- day basis. 5. Upon remand of the appeal before the learned First Appellate Court, the petitioners filed an application under Order XLI Rule 27 CPC. The said petition was allowed by order dated 04.04.2017, allowing the appellant to adduce evidence. The case was fixed on 11.04.2017, 17.04.2017, 25.04.2017, and 04.05.2017, but the petitioners had failed to take steps for adducing additional evidence or to call for the records of the Misc. (N.J.) Cases. On 04.05.2017, the petitioners prayed for adjournment and the learned First Appellate Court granted adjournment, fixing the case on 11.05.2017, directing the petitioners to file evidence within 7 days time, failing which it was ordered that the filing of evidence under Order XLI Rule 27 would be closed. On 11.05.2017, while praying for further adjournment, the petitioners informed the court that steps to call for the records of N.J. Cases were taken. As per the order dated 11.05.2017, the learned First Appellate court, on the perusal of the records, found that instead of taking steps to secure the records, the petitioners had issued notice to the counsel for the other side to appear on 11.05.2017. Considering the wrong steps, the learned First Appellate court did not allow any more time to the petitioners in view of order dated 04.04.2017 and the evidence of the petitioners' side was closed. The case was then fixed for argument on 22.05.2017. 6. On 22.05.2017, the petitioners prayed for adjournment for one date and the same was allowed and the case was fixed on 23.05.2017 for argument. On 23.05.2017, the petitioners remained absent without any steps and, as such, the learned First Appellate Court proceeded to hear the learned counsels for the respondent herein and the case was fixed on 29.05.2017 for further hearing. On 23.05.2017, the petitioners remained absent without any steps and, as such, the learned First Appellate Court proceeded to hear the learned counsels for the respondent herein and the case was fixed on 29.05.2017 for further hearing. By filing additional; affidavit dated 11.07.2017, the petitioners, by producing a copy of medical certificate, has stated that on 23.05.2017, his counsel, Gautam Deka, had to accompany his father for his treatment at Mukalmua. 7. The appeal was fixed on 29.05.2017 and on 30.05.2017, and on the prayer made by the petitioners, adjournment on the hearing was allowed. The case was then posted on 03.06.2017, and the petitioners' counsel filed petition No. 2768/17, with a prayer to recall the order dated 11.05.2017. The matter was heard on 05.06.2017 and by passing the impugned order dated 06.06.2017, the said petition No. 2768/17 dated 03.06.2017 was rejected. The said order is assailed herein. 8. The learned counsel for the petitioners has strongly urged that the petitioners was not at fault, but in this case, the petitioners were a victim of circumstances because the father of their learned counsel had became ill and had to be taken for treatment to Mukalmua, in the District of Nalbari for treatment on 23.5.2017, when the case was posted. Hence, the petitioners remained unrepresented when the matter was called and, as such, the petitioners should not be punished for unintentional mistake on part of their Counsel. 9. It is submitted that taking of wrong steps was the only reason for closing the additional evidence of the petitioners under Order XLI Rule 27 CPC. The petitioners, who had engaged a counsel, had relied on his counsel for taking steps, as such, for the incorrect steps taken to issue notice to the respondents to appear and not for calling the NJ Case records, the petitioners should not be punished. 10. It is submitted that previous conduct of the parties or their counsels cannot be a ground to reject the prayer made vide petition No. 2768/17 dated 03.06.2017. It is submitted that the delay in disposal was not only on account of the petitioners alone, but the learned appellate court had also contributed to the delay for the long time taken in disposing of the application under Order XLI Rule 27 CPC. 11. It is submitted that the delay in disposal was not only on account of the petitioners alone, but the learned appellate court had also contributed to the delay for the long time taken in disposing of the application under Order XLI Rule 27 CPC. 11. In support of his argument, the learned counsel for the petitioners has relied on the cases of- a. Budhia Swain & Ors. v. Gopinath Deb & Ors., AIR 1999 SC 2089 (para 10, 11, 13), b. Manoj Kamri Sengupta v. Gita Sengupta & Anr., (2006) 3 GLR 195 (para 10,11). 12. The learned counsel for the respondent has argued in support of the impugned orders dated 11.05.2017 and 06.06.2017 by projecting the delay which has been caused by successive defaults committed by the petitioners in pursuing the appeal. The emphasis was on the judgment dated 04.02.2016, passed by this Court in CRP 398/15, where there was a direction to the learned trial court to take up the hearing on day- to- day basis and dispose of the appeal within a period of 3 months. 13. It is also submitted that although the respondent is not in a position to admit whether the learned counsel for the petitioners had accompanied his father for treatment at New Delhi on 26.04.2017 and 27.4.2017 or at Mukalmua between 20.05.2017 to 28.05.2017 as per medical documents annexed to the additional affidavit of the petitioners dated 11.07.2017, but there other counsels are also engaged in the case. Moreover, if a counsel has to travel outside, it becomes the duty of the petitioners to make alternative arrangement to represent them in the court. It is further submitted that inadvertent mistake on one or two dates may be excused, but in this case there are a series of mistakes, which has to be a calculated mistake, as each of the said mistake has occasioned delay in disposal of the appeal. In this context, the learned counsel for the respondent, by relying on his notes of the case, submits that the following was the status of progress of the case from 11.04.2017:- a. 04.04.2017: Application under Order XLI Rule 27 CPC was allowed. b. 11.04.2017: Appeal fixed for steps, but no steps were taken. c. 17.04.2017: No steps were taken. d. 25.04.2017: No steps taken. e. 04.05.2017: Petitioners prayed for adjournment, prayer allowed. No steps were taken. b. 11.04.2017: Appeal fixed for steps, but no steps were taken. c. 17.04.2017: No steps were taken. d. 25.04.2017: No steps taken. e. 04.05.2017: Petitioners prayed for adjournment, prayer allowed. No steps were taken. Direction issued to take steps within 7 days, with condition that if steps is not taken, then filing of evidence under Order XLI Rule 27 CPC would be closed. f. 11.05.2017: Wrong steps taken. Instead of calling for records, notice given to respondent to appear in court. Court closed the additional evidence under Order XLI Rule 27 CPC. g. 22.05.2017: Adjournment for 1 day prayed and granted. Proper steps still not taken. h. 23.05.2017: No appearance in court by petitioners. i. 29.05.2017: Proper steps not taken. Adjournment prayed, and allowed. j. 30.05.2017: Proper steps not taken. Adjournment prayed, and allowed. k. 03.06.2017: Petition No. 2768/17 filed to recall the order dated 11.05.2017. l. 05.06.2017: Matter heard. m. 06.06.2017: Impugned order passed. 14. Hence, it is submitted that this Court had directed the appeal to be heard in 3 months and it was at the instance of the petitioners that the master was remanded back for hearing the appeal afresh, as such, it was the duty of the petitioners to be ready with steps once the First Appellant Court had allowed the application under Order XLI Rule 27 CPC by order dated 04.04.2017. But the appellant had been successful in delaying the steps, which has already sufficiently delayed the disposal of the appeal. Hence, it is prayed that the present application be dismissed. 15. Having heard the teamed counsellor the parties, it is apparent that this Court had directed the learned First Appellate Court by order passed in CRP 398/2015 to bear in mind the principles of law enshrined in Order XLI Rule 27 CPC and Order XLI Rule 31 CPC, while remanding the appeal back to the said learned Court. It was further directed that the appeal be disposed of within a period of 3 months. 16. The petitioners had not produced any material before this Court as to who was responsible for the delay in disposal of the appeal from 15.02.2016, being the date of appearance of parties in appeal till 04.04.2107, when the application under Order XLI Rule 27 CPC was allowed. However, on and from 04.04.2017 till 11.05.2017, there were lapses on part of the petitioners in taking steps. However, on and from 04.04.2017 till 11.05.2017, there were lapses on part of the petitioners in taking steps. The learned lower appellate court had forewarned the petitioner on 04.05.2017 that failure to take steps within 7 days would entail closure of additional evidence under Order XLI Rule 27 CPC. Yet, incorrect steps were taken on 11.05.2017. Merely because the learned First Appellate Court had not complied with the deadline imposed by this Court to dispose of the appeal in 3 months, is not a ground for this Court to treat the said order as having been rendered infructuous by efflux of time. Even though late, once the lower appellate court has realized that it was required to take up the hearing on day- to day basis because of the order passed by this Court in CRP 398/15, the effort cannot be discounted by finding fault with the court for causing delay. The civil courts are over-burdened with work and, as such, not that the court has no duty to take note of orders passed by the superior courts, yet the court is not expected to remember the contents of all the files on board, as such, it is also the duty of the learned Counsel for the parties to remind the court that there is a direction by the Superior Court for early disposal of the case. 17. Under the facts of this case, the question required to be answered is whether this court, while exercising jurisdiction under Article 227 of the Constitution of India has any discretionary power to interfere with the order passed by the learned courts below on equitable grounds. In this regard, the law appears to be well settled that the extra-ordinary superintending jurisdiction is to be sparingly used, not as a tool to substitute its view with the discretion exercised by the court below, unless the order is perverse, contrary to well settled principles of law, or if it is vitiated by jurisdictional error. 18. Coming to the present case in hand, it would be appropriate to quote the petition No. 2768/17 dated 03.03.2017, which was supported by an affidavit sworn by the learned Counsel for the petitioners. It reads as follows:- "1. Today this aforesaid case is fixed before this Hon'ble Court for argument. 2. That on 04.05.2017 this Hon'ble Court had passed an order to take steps for calling N.J. Case records., 3. It reads as follows:- "1. Today this aforesaid case is fixed before this Hon'ble Court for argument. 2. That on 04.05.2017 this Hon'ble Court had passed an order to take steps for calling N.J. Case records., 3. That 11.05.2017 for taking wrong steps the order of allowing by calling N J. Case records was closed. 4. That for ends of justice petitioner be allowed to file evidence. In the premises aforesaid Your Lordships may be pleased to admit this petition adjourned the matter for the day and/or recall the order dated 11.05.2017 and may be pleased to pass any suit further order/orders as Your Honour may deem fit and proper." 19. Therefore, even on 11.05.2017, when the petitioners were aware that the evidence was closed for not taking proper steps, the petitioners did not make any attempt to file proper steps to call for the records of N.J. Cases. The petition does not contain any explanation for not being able to take steps earlier or to explain why the petitioners committed a mistake in taking steps, by which instead of calling for N.J. Case records, the respondent was given notice to appear on 11.05.2017. The petitioners still prayed for adjournment of the appeal for a day and/or to recall the order dated 11.05.2017. 20. In this connection, this court finds that it would be most appropriate to quote an observation made by the Hon'ble Supreme Court of India in paragraph 8 of the case of Budhia Swain (supra), cited by the learned Counsel for the petitioners, which reads as follows:- "8. In our opinion a tribunal or a court may recall an order earlier made by it if (i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent, (ii) there exists fraud or collusion in obtaining the judgment, (iii) there has been a mistake of the court prejudicing a party or (iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented. The power to recall a judgment will not be exercised when the ground for re-opening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence." 21. Thus, this is not a case where the order impugned herein suffers from the vice of jurisdictional error. The learned trial court had given a sufficient forewarning that for not taking steps, the additional evidence would be closed and accordingly, the learned First Appellate Court exercised its discretion by closing the evidence for default in taking steps in form of wrong or incorrect steps. Even after the evidence was closed for not taking proper steps, the petitioners had either availed adjournments or failed to take steps on 22.5.17, 23.5.2017, 29.5.2017, and 30.5.2017, which in the opinion of this court, amounts to acquiescence. In petition No. 2768/17, there is no explanation for the failure to take proper steps and the petitioner did not show their bona fide by filing proper steps with the petition No. 2768/17 for recalling the order dated 04.05.2017. Hence, in view of the discussion in the foregoing paragraphs, this court is not inclined to interfere with the impugned order. 22. Accordingly, this application is dismissed without interfering with both the orders impugned herein. The interim order passed earlier stands vacated. 23. There shall be no order as to cost. As this Court had not stayed the proceedings before the learned First Appellate Court, the parties, who are represented by their respective counsels, would appear before the said learned court on the next date fixed and by producing the certified copy of this order, seek further instructions from the said learned court.