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2017 DIGILAW 838 (CAL)

Kachan Bibi v. Khabir Sk.

2017-11-02

MIR DARA SHEKO

body2017
JUDGMENT : MIR DARA SHEKO, J. 1. None appears to represent the opposite parties. Heard learned Counsel for the petitioners. Perused the materials on record and the impugned order. 2. The matter is taken up for consideration and disposal on merit at the instance of learned Counsel for the petitioners. 3. The application under Article 227 of the Constitution of India has been directed assailing the order dated 4th March, 2016 passed by learned Additional District Judge, Jangipur in Miscellaneous Appeal No. 2 of 2015 affirming the order No. 67 dated, 4th September, 2014 passed by learned Civil Judge (Senior Division), Jangipur, Murshidabad in Miscellaneous Case No. 10 of 2011. 4. It reveals that opposite party Nos. 1 and 2, being the plaintiffs, filed the suit for specific performance of contract against the predecessor of the petitioners and Sentu Sk, defendant No. 1, which ended into ex parte decree presumably for non-appearance of either of the defendants, when the suit was called on for hearing. 5. It further appears that on receipt of notice of execution, the predecessor of the petitioners came to learn about existence of that ex parte decree. Accordingly, Md. Ilias Biswas (since deceased) filed an application under Order 9 Rule 13 of the Code of Civil Procedure before the learned Trial Court for setting aside the said ex parte decree. After hearing the parties learned Trial Court by recording order No. 46 dated 31st March, 2012 though allowed the said application restoring the suit to its original file and number with cost of Rs. 3,000/-, but the same was challenged before learned Additional District Judge, Jangipur, Murshidabad vide Miscellaneous Appeal No. 5 of 2012. Learned Additional District Judge after hearing both sides set aside the said order of restoration by delivering judgment on 17th November, 2012 and remanded the matter to learned Trial Court for re-hearing the application under Order 9 Rule 13 of the Code of Civil Procedure. 6. In the second round learned Civil Judge (Senior Division), Jangipur rejected the application under Section 5 of the Limitation Act, which was accompanied with the application under Order 9 Rule 13 of the Code and eventually the delay of eight months having not been condoned by learned Trial Court, the impugned application under Order 9 Rule 13 of the Code was also rejected. 7. 7. Being aggrieved the petitioners preferred Miscellaneous Appeal No. 2 of 2015 before learned Additional District Judge, Jangipur, Murshidabad and learned Additional District Judge upon hearing the parties dismissed the miscellaneous appeal on contest without costs, meaning thereby the petitioners were not allowed to get restoration of the suit, which was heard and disposed of ex parte. 8. Within the ambit of Article 227 of the Constitution of India, in the process of judicial review though scope is limited still, considering the argument as advanced by Mr. Roy, let me consider as to whether the impugned orders had any sufferance from perversity causing miscarriage of justice in the process of discharging judicial function. It is redundant to mention that a civil suit proceeds and is controlled by the procedure provided within the Code of Civil Procedure. When any suit ends into ex parte decree and if it is challenged by the aggrieved person with the prayer for its restoration, then the same comes for consideration within the scope of Order 9 Rule 13 of the Code of Civil Procedure and its proviso. 9. In the case on hand some peculiar characteristics are available. From the finding of learned Trial Court it reveals, "there is no document in the record to show that summons of the suit was served upon the petitioner." However, it was further observed that the petitioners' appearance in the suit followed by some steps were held through their Advocate, learned Appellate Court also put its observation in the same tune, which is quoted: "There is no controversy over the issue that in O.S. 77/2006 No. W.S. has been filed and there is no material that summons has been served upon the petitioner Md. Illiyas." But likewise the observation of learned Trial Court, the Appellate Court also observed that "it is also undisputed matter that Md. Illiyas (petitioner/appellant) has executed the vakalatnama in favour of Sanatan Banerjee, learned Advocate in O.S. 77/06." 10. It reveals that in the text of the application under Order 9 Rule 13 of the Code of Civil Procedure, it was asserted that everything had been taken place collusively between the defendant No. 1, Sentu Sk and the plaintiffs of the suit beyond and behind knowledge of the predecessor of the petitioners, Md. Ilias, and, signature of said Md. Ilias might have been procured by said Sentu Sk. without allowing Md. Ilias, and, signature of said Md. Ilias might have been procured by said Sentu Sk. without allowing Md. Ilias to know any pros and cons about affair of the suit. 11. So far as the suit for specific performance of contract is concerned, the impugned agreement entered into by and between Md. Ilias Biswas, since deceased, and Khabir Sk. and Motiur Rahaman, opposite party Nos. 1 and 2, and, Sentu Sk., opposite party No. 3 was the subsequent purchaser from opposite party Nos. 1 and 2. 12. Therefore, learned Courts below while considering execution of Vakalatnama by Md. Ilias in favour of his learned Advocate, Sanatan Banerjee, the application filed under Order 9 Rule 13 of the Code after about eight months' delay, which was not allegedly explained satisfactorily, did not arise. Rather, consideration of those aspects was beyond jurisdiction, as because service of summons in the suit admittedly was not held upon the predecessor of the petitioners. 13. The provision of Order 9 Rule 13 of the Code may be available to the litigant strictly on two eventualities, i.e. firstly, if summons are not duly served, and secondly, if the defendant was prevented by any sufficient cause from appearing in Court, when the suit was called on for hearing. Therefore, except those two eventualities when there is no other laxity available to get any ex parte order set aside, the Court equally in judicial proceeding shall construe strictly as to whether the first of those two eventualities would have been complied with or not, and if yes, then the second clause is available. 14. In the instant case, initially the ex parte order was set aside restoring the suit, but in appeal the case was remanded back to the Trial Court. In second round both the Courts declining to give relief under Order 9 Rule 13 of the Code confined that the delay of eight months was not satisfactorily explained. The question of explaining the delay would be arising when there would be service of summons, which in the case on hand, admittedly, did not take place. Therefore, the first clause under Order 9 Rule 13 was not complied with. Therefore, benefit of such violation is to be allowed to the aggrieved party and not to the so-called beneficiary of the ex parte order. Therefore, the first clause under Order 9 Rule 13 was not complied with. Therefore, benefit of such violation is to be allowed to the aggrieved party and not to the so-called beneficiary of the ex parte order. Since the violation of procedural law has come to the notice as a matter of record, the impugned orders of both the Courts get sufferance not only from illegality but also from perversity, which are, accordingly, liable to be set aside. 15. Therefore, setting aside the judgment dated 4th March, 2016 passed by learned Additional District Judge, 1st Court, Jangipur, Murshidabad in Miscellaneous Appeal No. 2 of 2015, affirming the order dated 4th September, 2014 passed in Miscellaneous Case No. 10 of 2011, arising out of O.S. No. 77 of 2006 of the Court of learned Civil Judge (Senior Division), Jangipur, Murshidabad, the revisional application, being C.O. 1721 of 2016, stands allowed with direction to learned Trial Court to record formal order in restoring the suit under reference and to proceed with the same in presence of both sides for its expeditious disposal. 16. No order as to costs. Department is directed to communicate a copy of this order to learned Trial Court. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.