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2017 DIGILAW 709 (GAU)

Sandeep Kr. Dhar v. Sajid Ahmed

2017-06-01

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. G. Uzir, learned Sr. counsel for the petitioner as well as Mr. D. Baruah, learned counsel for the respondent. 2. By filing this application under Article 227 of the Constitution of India, the petitioner had challenged the impugned order dated 04.05.2017 passed by the learned Civil Judge, No. 3, Kamrup (M), Guwahati in M.S. No. 300/2016, by which the matter was fixed on 20.05.2017 for argument. 3. The case of the petitioner is that the respondent had field Money Suit No. 300/2016 for recovery of Rs. 22,38,450.00 along with interest @ 12 per cent per annum. The said suit was sent before the court of learned Civil Judge, No. 3, Kamrup (M), Guwahati. On record being put up, the said learned court issued summons on the petitioner fixing 16.02.2017 for appearance. The summons of the suit was served on the wife of the petitioner, requiring appearance of the defendant on 16.02.2017. The petitioner could not entered appearance on the date fixed and no steps was taken on his behalf and, as such, the suit was ordered to proceed ex-parte against the petitioner by order dated 16.02.2017. The case was then posted on 01.04.2017 for ex-parte evidence and even of the said date, the petitioner had remain absent without any steps. The case of the petitioner is that at the same point of time the petitioner was ill and therefore the petitioner’s wife kept the notice in the office without informing the defendant due to his ill health as he was already undergoing serious stress due to the proceedings of CR. Case No. 2663/2016 pending before the court of Sub- Divisional Judicial Magistrate-II, Kamrup (M), Guwahati and he was also undergoing great mental stress regarding his business. In such situation, the wife forgot to inform the petitioner about the court summons. However, when the petitioner asked his wife then only the wife informed about receipt of the notice and that due to his illness, same was not disclosed to the defendant and accordingly he entered appearance in the suit by filing Vakalatnama and the suit was fixed on 18.04.2017 for necessary orders. However, when the petitioner asked his wife then only the wife informed about receipt of the notice and that due to his illness, same was not disclosed to the defendant and accordingly he entered appearance in the suit by filing Vakalatnama and the suit was fixed on 18.04.2017 for necessary orders. The petitioner has projected that he was suffering from Liver and Kidney ailments which was at advance stage and therefore, on 04.04.2017, his Doctor at International Hospital who was treating the petitioner referred him for better treatment at Medanta Hospital at Delhi where he received treatment from 07.04.2017 to 11.04.2017 and after coming to Guwahati he was again hospitalized on 05.05.2017 at Apollo Hospital, Guwahati and discharged on 08.05.2017. 4. It is submitted by the learned Sr. counsel for the petitioner that on 18.04.2017, the counsel for the petitioner had submitted a petition before the learned trial court seeking time by filing petition to vacate the ex-parte order dated 16.02.2017, but the learned trial court had asked the counsel that the court cannot accept and allow the petition for seeking time for filing petition for vacating the ex-parte order and the petitioner counsel was asked to file W.S as well as petition for vacating the ex-parte order on next date. Accordingly, the counsel for the defendant did not press the petition and the matter was fixed on 04.05.2017 for ex-parte argument. Thereafter, on 04.05.2017, the petitioner filed petition No. 1554/2017 for vacating the earlier order to proceed ex-parte against him, which was registered as Misc. (J) Case No. 377/2017, but the said prayer was rejected on the same date and the case was posted for argument on 20.05.2017. It is further stated in this present application that the learned trial court had not cited any reason or any ground for not entertaining the petition for vacating the ex-parte order. It is submitted that the case was fixed on 20.05.2017 for ex-parte argument and having heard the matter, the suit has been fixed on 03.06.2017 for delivery of judgment. The said hereinbefore mentioned order dated 04.05.2017 is challenged in the present application. The learned Sr. It is submitted that the case was fixed on 20.05.2017 for ex-parte argument and having heard the matter, the suit has been fixed on 03.06.2017 for delivery of judgment. The said hereinbefore mentioned order dated 04.05.2017 is challenged in the present application. The learned Sr. counsel for the petitioner submits that the order to proceed ex-parte in the suit was passed on 16.02.2017 and the petitioner had move the learned trial court on 04.05.2017 by filing an application for vacating the ex-parte order, but the learned trial court had refused to vacate the ex-parte order, which has resulted miscarriage of justice as the respondent has filed the suit for huge claim of Rs. 22,38,450.00. It is further submitted that the petitioner is undergoing treatment for his Liver and Kidney related ailment. 5. By referring to the annexed documents and medical reports, it is projected that as per Annexure-A, the petitioner was admitted to International Hospital on 09.12.2016 and discharged on 20.12.2016. Thereafter he was again admitted in the same hospital on 04.02.2017 and discharged on 06.02.2017. Thereafter, he was once again hospitalized and 17.02.2017 and discharged on 22.02.2017. Thereafter, he was admitted at Medanta Hospital, Delhi on 07.04.2017 and discharged on 11.04.2017 again he was hospitalized at Apollo Hospital, Guwahati on 05.05.2017 and discharged on 08.05.2017 and it is submitted all these goes to show that the petitioner had been in critical medical condition requiring hospitalization in the gap of such few days and therefore, this is a case where the petitioner may not be denied justice to depend himself in such a huge claim made against him. 6. Per-contra, the learned counsel had entered appearance on behalf of the respondent and has submitted that he was the conducting counsel for the respondent/plaintiff before the learned trial court and, as such, he urged that he may be heard in view of urgency shown by the learned Sr. counsel for the petitioner, which is reflected in the order dated 31.05.2017 passed by this Court. The learned counsel for the respondent has submitted five documents by filing a memo with a copy thereof to the learned Sr. counsel for the petitioner. It is submitted that the petitioner has not come with clean hands and he has twisting the material facts and he has also suppressed material facts. The learned counsel for the respondent has submitted five documents by filing a memo with a copy thereof to the learned Sr. counsel for the petitioner. It is submitted that the petitioner has not come with clean hands and he has twisting the material facts and he has also suppressed material facts. It is further submitted that there is a change in the story line of the petitioner as projected before the learned trial court vis-a-vis from that presented in this application. By referring to petition No. 1290 dated 12.04.2017, the learned counsel for the respondent submits that in the said petition, the petitioner had submitted that the petitioner herein had gone to Delhi for better treatment, but the said petition was only supported of verification by the learned counsel for the petitioner. Thereafter, the counsel for the petitioner had filed another adjournment petition before the learned trial court bearing petition No. 1327 dated 18.04.2017, by which time was sought to file a petition for vacating the ex-parte order dated 16.02.2017, but the said petition was contains an endorsement of not being pressed which was duly signed by the counsel for the petitioner. It is submitted that the present application does not contain any affidavit by the petitioner’s counsel informing what had transpired in the court on 18.04.2017 and therefore, it was wrong to allege that the court below had compelled the counsel not to press the said application. It is further submitted that in the application for vacating the ex-parte order which was filed on 04.05.2017, was registered as Misc. (J) Case No. 377/2017, wherein it is stated that the petitioner could not be present in the court on 06.02.2017. The learned counsel for the petitioner submits that although no date was fixed on 06.02.2017, the petitioner had cleverly used at date only to make it coincide with his discharge report issued by the International Hospital indicating that the petitioner was hospitalized on 04.02.2017 and discharged on 06.02.2017. It is further submitted that the said petition was signed and verified by the petitioner himself, but in the verification there is a false statement as if the petitioner was his engaged counsel. It was stated as “I Sandeep Kr. Dhar, S/o Sunil Kr. It is further submitted that the said petition was signed and verified by the petitioner himself, but in the verification there is a false statement as if the petitioner was his engaged counsel. It was stated as “I Sandeep Kr. Dhar, S/o Sunil Kr. Dhar, A.K. Azad Raod, Rehabari, Guwahati-7, Kamrup (M), Assam, do hereby solemnly confirmed and declare that I am the engaged counsel in the instant case.......” It is further submitted that the medical papers submitted by the petitioner does not indicate that the petitioner suffered any problem on 16.02.2017, when he was required to appear before the trial court. Therefore, unless the petitioner explains satisfactorily the absence on the date of 16.02.2017, when the suit was ordered to proceed ex-parte, the petitioner was not entitled for any relief. 7. It is also argued that the order dated 04.05.2017, refusing to vacate ex-parte order was passed in Misc. (J) Case No. 377/2017 and therefore, the order dated 04.05.2017 passed in M.S. No. 300/2016 was not the impugned order the it was merely a consequential order therefore, the correct order having not been challenged, the petitioner was not entitled to any relief in the present application. The learned counsel for the respondent has further argued that the extra ordinary jurisdiction under Article 227 of the Constitution of India cannot be used when the impugned order does not suffer from jurisdictional error or when it does not reflect that the order suffers from the vice of grave dereliction of duty on part of the court below. It is also submitted that this revisional court under Article 227 is not required to pass orders on the basis of its own perception of justice, and grant discretionary relief when the facts and circumstances do not warrant any inference. In support of the aforesaid contentions, the learned counsel for the respondent has relied on the case of Ouseph Mathai and Others vs. M. Abdul Khadir, (2002) 1 SCC 319 and Prestige Lights Ltd. vs. State Bank of India, (2007) 8 SCC 449 . 8. In support of the aforesaid contentions, the learned counsel for the respondent has relied on the case of Ouseph Mathai and Others vs. M. Abdul Khadir, (2002) 1 SCC 319 and Prestige Lights Ltd. vs. State Bank of India, (2007) 8 SCC 449 . 8. It is also argued by referring to the case of Arjun Singh vs. Mohindra Kumar and Others, AIR 1964 SC 993 and Rasiklal Manikchand Dhariwal and Another vs. M.S.S. Food Products, (2012) 2 SCC 196 that as it is the admitted case of the petitioner that the matter was already heard and the case is fixed for judgment on 03.06.2017, in such situation, the learned Civil Court did not have the power to entertain the application under Order IX Rule 7 of the CPC anymore and the only remedy which should now be available to the petitioner would be to wait for the judgment to be delivered and then approach the court under the provisions of Order IX Rule 13 CPC. It is therefore, submitted that this is a fit case for dismissal of the revision. 9. Considering the arguments advanced by the learned counsel for the parties, this court is of the view that as per the factual matrix, that order dated 04.05.2017, which has been impugned in the present revision was an order passed in M.S. No. 300/2016, which reads as follows: “Parties are represented. The defendant side has filed petition No. 1559/2017 U/O 9 Rule 7 of CPC on the basis of which Misc. (J) Case No. 377/2017 is registered and today itself the said Misc. (J) Case has been disposed off rejecting the said petition of the defendant for setting aside the ex-parte order. Accordingly, the suit is posted for argument as before. Fixing 20.05.2017 for argument.” 10. Therefore it is apparent from reading of the above that the application under Order IX Rule 7 CPC, being petition No. 1559/2017 was registered as Misc. (J) Case 377/2017, which was also rejected by order dated 04.05.2017 which finds mentioned in the order quoted above. The learned counsel for the respondent had filed a copy of the said order along with the documents field on 31.05.2017 with a copy thereof to the learned Sr. counsel for the petitioner. (J) Case 377/2017, which was also rejected by order dated 04.05.2017 which finds mentioned in the order quoted above. The learned counsel for the respondent had filed a copy of the said order along with the documents field on 31.05.2017 with a copy thereof to the learned Sr. counsel for the petitioner. On perusal of the same, it appears that the learned trial court had opined that the petitioner/defendant had failed to assign any cause at all for his non-appearance on 16.02.2017. 11. Nonetheless, the said order dated 04.05.2017 passed by the learned Civil Judge, No. 3, Kamrup (M), Guwahati in Misc. (J) Case 377/2017 in M.S. No. 300/2016 is neither annexed nor impugned in the present application and no relief has been prayed for in respect of the same. Hence, in the considered opinion of this Court, it would not be fruitful to interfere with the order dated 04.05.2017 passed by the learned trial court in M.S. No. 300/2016 because the order to refuse to set aside the order dated 16.02.2017 passed in Misc. (J) Case 377/2017 would continue to stand. On the other hand as it is already fixed for judgment on 03.06.2017, this Court finds no way to interfere with the order impugned herein. 12. Nonetheless, this Court is of the view that as the documents related to medical report as filed in the revision application, the same is indicative of the fact that as per the discharge report, it shown admission of the petitioner to International Hospital on 09.12.2016 and showing discharge on 20.12.2016. It contains a description of his then current medical problem No. (i) Urinary tract infection with sepsis, (ii) Hepatic hydrothorax, (iii) Acute kidney injury, (iv) Anaemia and (v) Dyselectrolytaemia and his subsequent hospitalization has already referred above could be a good ground for a caring house wife to withhold the summons from the husband in view of his recurrent ill health. But, when the petitioner became aware of the same, he had rushed to court without any inordinate delay. However, this Court has restrained itself from interfering in the matter because the relevant order dated 04.05.2017 passed by the learned trial court in Misc. (J) Case 377/2017 is not in challenge before this Court. 13. In view of above, this Court is not inclined to entertain the present revision. However, this Court has restrained itself from interfering in the matter because the relevant order dated 04.05.2017 passed by the learned trial court in Misc. (J) Case 377/2017 is not in challenge before this Court. 13. In view of above, this Court is not inclined to entertain the present revision. However, considering all the aspects of the matter and in view of the Full Bench decision of the Hon’ble Apex Court in the case of Arjun Singh (supra), it is made clear that it would be open for the petitioner to await the verdict of the learned trial court in the suit and thereafter to approach the said learned court under the provisions of Order IX Rule 13 of the CPC, if so advised. In case, such an application is filed, the same would not to be hit by the principle of res-judicata on dismissal of an application under Order IX Rule 7 of the CPC. 14. With the observation, this revision stands dismissed. There shall be no order as to costs.