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2017 DIGILAW 1211 (GAU)

Pradyut Bordoloi v. G. L. Agarwalla

2017-08-31

PRASANTA KUMAR DEKA

body2017
JUDGMENT & ORDER : 1. Heard Mr. KN Choudhury, learned senior counsel, assisted by Mr. M. Mahanta, learned counsel, appearing for the petitioner and Mr. D. Chakraborty learned counsel, appearing on behalf of the respondents. 2. The order impugned in this petition is dated 19.4.2013, passed in Money Suit No. 9/2011 by the court of the learned Civil Judge, Tinsukia. The present petitioner is the plaintiff who filed the suit against the defendants/ respondents. Summons was duly served on the respondents and they entered appearance in the learned court below on 21.7.2011 seeking time for filing written statement on the ground that copy of the plaint was not furnished along with the summons. The learned court below allowed the prayer directing the defendants/ respondents to take the copy of the plaint at their own cost from the record with a direction to the Bench Assistant to do the needful fixing 6.8.2011 for written statement. 3. On 6.8.2011, the defendants/ respondents sought for adjournment and in this manner, the defendants/ respondents sought time for filing written statement on 25.8.2011, 17.9.2011. On 28.10.2011, the defendants/ respondents remained absent. Similarly on 9.11.2011, 22.11.2011, the defendants/ respondents remained absent. The learned court below finding no alternative invoked the provisions under Order 9 Rule 6 of the CPC and the matter proceeded ex-parte. On 7.2.2011, the defendants/ respondents filed an application under Order 9 rule 7 of the CPC with a prayer to vacate the ex-parte order dated 22.11.2011 on the ground that the advocate representing the said defendants/ respondents made a wrong entry in his diary as 28.11.2011 in place of 20.8.2011. On 28.8.2011, the written statement was filed but as the matter proceeded ex-parte the said written statement was not accepted by the court below, so an application was filed for setting aside the ex-parte order and accept the written statement. The said application was not supported by the affidavit. However, the same was supported by verification of one of the defendants/ respondents. The present plaintiff/ petitioner 4. The learned court below took up the said petition on 19.4.2013 and passed the impugned order thereby accepting the written statement after ex-parte order dated 22.11.2011 was vacated. Being aggrieved, this revision petition is filed against the said order. 5. Mr. However, the same was supported by verification of one of the defendants/ respondents. The present plaintiff/ petitioner 4. The learned court below took up the said petition on 19.4.2013 and passed the impugned order thereby accepting the written statement after ex-parte order dated 22.11.2011 was vacated. Being aggrieved, this revision petition is filed against the said order. 5. Mr. Choudhury, learned senior counsel submits that 90 days period stipulated under order 8 Rule 1 CPC though not mandatory, but if a court is satisfied with the causes shown by the defendants and passes a judicial order and accept the written statement setting aside the ex-parte order, the same must be on the basis of the logical and reasonable grounds. He submits that in the present case in hand, the fact that there was wrong entry in the diary of the counsel is not supported by affidavit nor the application is filed by the counsel representing the defendants. The court below straightway accepted the ground of wrong entry in the diary of the counsel without having any basis except the averments made in the petition. As such, Mr. Choudhury submits that the impugned order is liable to be interfered and set aside. 6. Mr. Chakraborty learned counsel, appearing on behalf of the defendants/ respondents also submits that admittedly no affidavit was sworn by the learned counsel conducting the suit in support of the cause for non filing of written statement. However, the court below had applied its discretion on the grounds shown and the said discretion exercised by the court below is not to be interfered by this court under the jurisdiction of Article 227 of the Constitution of India. So, Mr. Chakraborty submits that the petition be dismissed. 7. Considered the submissions of both the learned counsels. The submission made by Mr. Choudhury, learned senior counsel has its force. Though the discretion lies with the trial court to vacate the ex-party order, the same be passed having some basis on the presumption arrived by the court below before terming the said cause as good cause within the parameter of Order 9 Rule 6 CPC. 8. On the other hand, the submission of Mr. Chakraborty is also correct inasmuch as the discretion applied by the court below is not to be interfered within the jurisdiction under Article 227 of the Constitution of India. 8. On the other hand, the submission of Mr. Chakraborty is also correct inasmuch as the discretion applied by the court below is not to be interfered within the jurisdiction under Article 227 of the Constitution of India. The order impugned in this revision petition needs at least to record the basis of satisfaction drawn by the court below. Though the said satisfaction as apparent from the order is drawn on the basis of fault on the part of the conducting advocate, the same has no basis inasmuch as no affidavit was sworn in support of the said fact by the counsel appearing on behalf of the defendants/ respondents. Accordingly, the impugned order is set aside. 9. Let a petition be filed afresh by the defendants/ respondents in proper manner and thereafter court below shall consider the matter as per law keeping in view that the respondents had already field the written statement. 10. Interim order passed earlier stands vacated. Parties to the suit will appear before the trial court on 26.10.2017 and submit a copy of this order where after the learned court below shall proceed as per observation made hereinabove. 11. This petition is accordingly disposed of.