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2017 DIGILAW 545 (GAU)

NAZIBUDDIN AHMED v. ASHIK IKBAL

2017-05-05

KALYAN RAI SURANA

body2017
JUDGMENT : Kalyan Rai Surana, J. Heard Mr. D. Choudhury, learned counsel, appearing for the petitioner as well as Mr. A. Choudhury, learned counsel, appearing for all the respondents. 2. By filing this application under section 115 of the Code of Civil Procedure read with Article 227 of the Constitution of India, the petitioner has challenged the order dated 07.10.2016, passed by the learned Munsiff No. 1, Nalbari, in Misc. (J) Case No. 59/2016, whereby the ex-parte judgement and decree dated 11.02.2016, passed by the said learned Court in connection with Title Suit No. 39/2014 was set aside. 3. The case as projected by the learned counsel for the petitioner is that the petitioner had instituted a suit for declaration of right, title and interest and for permanent injunction in respect of the suit land, measuring 1 Katha 1 Lecha under Dag No. 755/756 of K.P. Patta No. 155 of nearby town Ward No. 1, Mouza Khata together with 2 storied building and single storied building standing thereon. 4. It is submitted that on service of summons, the defendant No. 1, namely, Md. Mahboob Ali, had entered appearance in the suit on 23.07.2014 and on appearance by filing Petition No. 1210/2014 prayed for another date for filing written statement. Thereafter, the learned Trial Court, having found that the concerned defendant No. 1 was absent without steps and had not filed the written statement even after the expiry of statutory period, closed the opportunity to the said defendant No. 1 to file written statement. However, it was ordered that he shall take part in the proceedings of the suit. 5. By referring to the copy of the order sheet, the learned counsel for the petitioner submits that the case was fixed for argument on 28.05.2015 and only the plaintiff's side was represented in the suit and the suit was heard by the learned Court of Munsiff No. 1, Nalbari on 28.05.2015. The suit was, thereafter, fixed for judgement on 09.07.2015 and ultimately the judgement was pronounced on 11.02.2016. He submits that the defendant No. 1 expired on 13.12.2015, which was after the suit was heard and therefore, under the provisions of Order 22, Rule 6 of the Civil Procedure Code, there was no abatement of the suit for reason of death after the hearing. 6. He submits that the defendant No. 1 expired on 13.12.2015, which was after the suit was heard and therefore, under the provisions of Order 22, Rule 6 of the Civil Procedure Code, there was no abatement of the suit for reason of death after the hearing. 6. It is submitted that long after the judgement was delivered, the legal representatives of the deceased defendant No. 1 suddenly appeared before the learned Trial Court and on 11.05.2016 filed an application under Order 9, Rule 13 read with section 151 of the Civil Procedure Code for setting aside the ex-parte judgement and decree dated 11.02.2016, passed in Title Suit No. 39/2014. 7. It is submitted that notwithstanding the statements made therein that the defendant No. 1 was suffering from malignancy (cancer) on the left kidney and his treatment outside the State had prevented the defendant No. 1 from taking steps in the matter, the defendant No. 1, having appeared before the learned Trial Court, cannot be said to have no knowledge of the proceedings of the suit and therefore, this was not a fit case for setting aside their ex-parte decree under an application under Order 9, Rule 13 of the Code of Civil Procedure. 8. The learned counsel for the petitioner submits that as per the requirement of Rule 13 of Order 9 of the Code, the Court is required to be satisfied that the summon was not duly served or that the defendant No. 1 was prevented by any sufficient cause from appearing in the suit when the suit was called for hearing. He further submits that even the written statement having not been filed under the time prescribed under Rule 1 of Order 8, in essence the suit was proceeded ex-parte from the date of expiry of 90 days from the date of receipt of summons. It is also submitted that the defendant No.1, after having appearing once, did not file any proper application before the learned Trial Court, informing about the disability in further contesting the suit. 9. The learned counsel for the petitioner further submits that the learned Court below had committed jurisdictional error in allowing the said Misc. It is also submitted that the defendant No.1, after having appearing once, did not file any proper application before the learned Trial Court, informing about the disability in further contesting the suit. 9. The learned counsel for the petitioner further submits that the learned Court below had committed jurisdictional error in allowing the said Misc. (J) Case No. 59/2016 by presuming that the decree, which was passed against a death person/defendant No. 1, was a nullity and failed to consider the reasons for his non-appearance before the learned Trial Court after the first appearance was made. He further submits that the defendant No. 1 appeared in the suit along with his brother and, therefore, no cause being shown for the non-appearance by the defendant No. 2, who jointly appeared along with the defendant No. 1, no case is made out before the learned Trial Court for allowing the petition under Order 9, Rule 13 of the Code, as no sufficient cause was made out. 10. The learned counsel for the respondents support the impugned order. In essence, the learned counsel for the respondents has reiterated whatever has been recorded by the learned Trial Court in the impugned order. He further submits that as reflected in the impugned order, as per the case of G.P. Srivastava v. R.K. Raizada, reported in 2000 (3) SCC 54 , the words "was prevented by any sufficient cause from appearing" must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to erring party. He further submits that the courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. 11. Having heard the learned counsel for both the sides and on perusal of the materials available on record, this Court has viewed that the concerned learned Munsiff No. 1, Nalbari, had passed the impugned judgement and decree on 11.02.2016. As reflected from the order sheet, the suit was heard by the said learned Trial Court on 28.05.2015. However, in the judgement and decree passed on 11.02.2016, it is made to appear as if the learned Trail Court had heard the suit on 11.02.2016 and the judgement was delivered on the same date of hearing. 12. As reflected from the order sheet, the suit was heard by the said learned Trial Court on 28.05.2015. However, in the judgement and decree passed on 11.02.2016, it is made to appear as if the learned Trail Court had heard the suit on 11.02.2016 and the judgement was delivered on the same date of hearing. 12. It may be pertinent to quote the provisions of Sub-Rule (1) of Rule 1 of Order 20, which is as follows - "1. Judgment when pronounced.- (1) the Court, after the case has been heard, shall pronounce judgment in an open Court, either at once, or as soon thereafter as may be practicable and when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose, of which due notice shall be given to the parties or their pleaders: Provided that where the judgment is not pronounced at once, every endeavour shall be made by the Court to pronounce the judgment within thirty from the date on which the hearing of the case was concluded but, where it is not practicable so to do on the ground of the exceptional and extraordinary circumstances of the case, the Court shall fix a future day for the pronouncement of the judgment, and such day shall not ordinarily be a day beyond sixty days from the date on which the hearing of the case was concluded, and due notice of the day so fixed shall be given to the parties or their pleaders." 13. Therefore, it is the mandate of the Code of Civil Procedure that the Court should pronounce the judgement within 30 days from the date when the hearing was concluded, but, where it is not practicable to do so, the Court may fix a future date for the pronouncement of the judgement, which was not beyond 60 days from the date of hearing. The purpose of this provision has some relevance to the provisions of Rule 6 of Order 22, which provides that there would be no abatement for reasons of death after hearing, the provisions of Rule 6 of Order 22 is also quoted below - "6. The purpose of this provision has some relevance to the provisions of Rule 6 of Order 22, which provides that there would be no abatement for reasons of death after hearing, the provisions of Rule 6 of Order 22 is also quoted below - "6. No abatement by reason of death after hearing.- Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place." 14. In the opinion of this Court, under the scheme of the Code, once the case is reserved for judgement, then the party has no way to inform the Court about the death of the party and, therefore, notwithstanding the death of the party after the hearing, the Court is empowered to deliver the judgement as if there were no abatement. However, in the present case in hand, after the suit was heard on 28.05.2015, the following dates were fixed for delivery of judgement, i.e., 09.07.2015, 27.08.2015, 29.09.2015, 26.11.2015, 16.12.2015 and thereafter, the judgement was delivered on 11.02.2016. However, the defendant No. 1, in the present case in hand, had expired on 13.12.2015. Therefore, even after the date of death of the defendant No. 1, the Court had fixed a date on 16.12.2015, on which date, the petitioner, who is also one of the brother of the deceased defendant No. 1 could have informed the death of the defendant No. 1. 15. Viewed from another angle, as per the provisions of Sub-Rule (4) of Rule 4 of Order 22, the Court is empowered to exempt the plaintiff from the necessity of substituting the legal representatives of any defendant, who had failed to file the written statement and under such circumstances, the Court will pronounce a judgement against the defendant notwithstanding the death of such defendant, who had not contested the suit. However, on a perusal of the order dated 29.09.2015, it appears that the learned Trial Court only disallowed the defendant No. 1 to submit the written statement, but, they were permitted to take part in the proceedings of the suit. However, on a perusal of the order dated 29.09.2015, it appears that the learned Trial Court only disallowed the defendant No. 1 to submit the written statement, but, they were permitted to take part in the proceedings of the suit. Therefore, in essence, no order to proceed against the defendant No. 1 appears to have been passed. In the case of T. Gnanavel v. T.S. Kanagaraj, reported in (2009) 14 SCC 294 , the Hon'ble Court had held that unless exception of substituting is allowed under Sub-Rule (4) of Rule 4 of Order 22, the decree pronounced is a nullity. In the present case as the defendant No. 1 died on 13.12.2015, the same was not brought to the notice of the Court on 16.12.2015, which was the next date in the case. 16. The learned Trial Court, in an application under Order 9, Rule 13, had set aside the ex-parte decree and restored the suit to file. Even otherwise, this Court finds that there are other reasons for not interfering with the said impugned order on the ground that the judgment and decree, which was set aside, was vitiated by non pronouncement of the judgement and decree within the time framed under Order 22, Rule 1 of the Code. This Court also hastens to add in exceptional circumstances, a Court can extend the time for delivering judgement even after 60 days period is over from the date of hearing, but the Court cannot put another date of hearing, when actually it was not heard then. In the present case, it is found that the learned Trial Court had shown in the judgement and decree that the matter was heard on 11.02.2016, which is not borne by the records. 17. Therefore, it is on this technical ground that the Court ought not to have made a misrepresentation in the judgement of having heard the parties on 11.02.2016. Because, it is for that defect in the judgement that it now appears to this Court that although the matter was heard by the learned Trial Court before the defendant No. 1 had expired, which has caused prejudice to the petitioner herein. It is not expected for a learned Trial Court to misrepresent in the impugned judgement about the date of hearing. It is not expected for a learned Trial Court to misrepresent in the impugned judgement about the date of hearing. It is for that reason, this Court is inclined to set aside the order impugned therein as the judgement and decree cannot be sustained. 18. In that view of the fact that the case was heard on 28.05.2015, but made to appearance to fix hearing on 11.02.2016, this Court is inclined to bring this to the notice of the learned Registrar (Judicial) of this Court to take this matter on the administrative side so that all the Judicial Officers are informed to reflect the correct date of hearing in the judgement so that no prejudice has been suffered by any of the parties for such a small or trivial reason. 19. In view of what has been indicated above, this Court is not inclined to interfere with the order impugned in the present case. Therefore, this revision is dismissed. 20. The parties are left to bear their own cost.