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2017 DIGILAW 958 (CAL)

SREEJIT KUMAR TAGORE v. RADHA KISSEN BHATTER

2017-12-07

SABYASACHI BHATTACHARYYA, SANJIB BANERJEE

body2017
JUDGMENT : 1. The matter brings out the ugly side of the system: the extent to which lawyers supporting a cause may involve themselves with the clients in seeking to confer undeserving benefits on the clients. 2. The appeal is directed against an order of September 23, 2015 by which the trial court recalled its judgment and decree of March 20, 2015 passed in an eviction suit. The primary contention of the appellant-plaintiff is that no ground was made out for recalling the judgment and decree and, indeed, the trial court found no ground for the judgment and decree to be recalled; yet, the decree has been recalled on some unacceptable, merciful consideration. 3. When this appeal was received on February 9, 2016, the following order was recorded: “The Court: The appellant has approached this Court contending that there was no justification in recalling the order dated 20.3.2015 on the ground that more than 7 lacs of rupees is due towards arrears of rent. “In the light of such submission, in order to understand the bonafides of the respondent/11th defendant, at whose instance the impugned order is passed and appreciate that there is genuine reason for him to contest the matter and not to play delay tactics, we direct the respondent/11th defendant to deposit the alleged amount of arrears of rent due, that is, Rs.7,34,816/- within 10(ten) days from today with the Registrar, Original Side and the same shall be kept in an interest earning deposit. “If the above direction is not complied with, the impugned order recalling the decree shall stand set aside and the decree passed earlier would stand confirmed.” 4. The order of February 9, 2016 was carried by way of a special leave petition to the Supreme Court. By an order of May 5, 2017, the matter was disposed of by the Supreme Court on the following terms: “No case for interference in the interlocutory order is made out. However, it is made clear that in case landlord so desires, is free to file proper application before the High Court for deposit of some more arrears. The High Court shall consider the same. “It has been stated by the learned counsel appearing on behalf of the landlord that Appeal itself shown to be disposed of in the computer. However, it is made clear that in case landlord so desires, is free to file proper application before the High Court for deposit of some more arrears. The High Court shall consider the same. “It has been stated by the learned counsel appearing on behalf of the landlord that Appeal itself shown to be disposed of in the computer. The bare perusal of the impugned order indicates that Appeal has not been disposed of and no further order has been placed on record. “It is stated by the learned counsel appearing on behalf of the respondent no.1 that within the time specified by the High Court i.e. within ten days the amount had been deposited. “In case the appeal has been wrongly treated as disposed of, it is open to the parties to bring it to the attention of the High Court and the pending appeal be dealt with as expeditiously as possible. “With the aforesaid observation, the special leave petitions stand disposed of.” 5. The preliminary objection taken on behalf of the respondent-defendant no.11, at whose behest the judgment and decree was recalled, is that the appeal has been disposed of by the order of February 9, 2016 and even the case status in the case information system of this Court records the appeal to have been disposed of. A printout of the relevant information obtained from the department has been carried to Court. 6. Such preliminary objection cannot even be countenanced in view of the clear finding in such regard recorded in the Supreme Court order of May 5, 2017 that the order “indicates that Appeal has not been disposed of and no further order has been placed on record.” To boot, there is a further line in the Supreme Court order that in the event “the appeal has been wrongly treated as disposed of, it is open to the parties to bring it to the attention of the High Court” and a corresponding direction that “the pending appeal be dealt with as expeditiously as possible.” 7. Neither the appeal nor the application taken up by the Division Bench on February 9, 2016 appears to have been disposed of by the order of such date. At any rate, the order did not record as such. 8. According to the appellant, no grounds were carried to the Trial Court for the judgment and decree to be recalled. Neither the appeal nor the application taken up by the Division Bench on February 9, 2016 appears to have been disposed of by the order of such date. At any rate, the order did not record as such. 8. According to the appellant, no grounds were carried to the Trial Court for the judgment and decree to be recalled. The appellant submits that the grounds taken in the relevant application in the trial court were grounds more appropriate in an appeal. Further, the appellant suggests that the application carried to the trial court was to browbeat the trial court into submission and an all-out attack on the Judge and the manner in which the trial of the suit had been conducted or the matter had been heard at the argument stage. In such context, several paragraphs from the recalling application filed before the trial court have been placed on behalf of the appellant, including paragraphs 12 and 13, which read as follows: “12. At page 6 of the said order, its has been recorded as follows: “‘The advocate-on-record of the defendant No.11 thereafter commenced the argument without any reservation and without any prayer for adjournment. Since no prayer for adjournment was made, the hearing of the suit continues. He concluded the argument on behalf of his client. On conclusion of the argument, advanced by the learned advocate-on-record for the defendant No.11, I enquired of such advocate-on-record as to whether he had concluded the argument to his to his satisfaction to which he answered in the affirmative.’ “13. In this connection, your petitioner states that the advocate-on-record of the defendant No.11 was not agreeable to commence the argument as he is a junior member and was not in a position to argue in absence of the learned senior counsel. In fact, said advocate-on-record had sought for adjournment after the senior counsel left the court room after feeling sick. Such adjournment was refused by this Hon’ble Court. This Hon’ble Court had asked the learned junior advocate-on-record that unless he argued the matter, the argument of the defendant No.11 will be closed. In fact, the said advocate-in-record had no option, rather he was compelled to, argue in whatever manner he can according to his wisdom and as such argument lasted only for about 10 minutes. This Hon’ble Court had asked the learned junior advocate-on-record that unless he argued the matter, the argument of the defendant No.11 will be closed. In fact, the said advocate-in-record had no option, rather he was compelled to, argue in whatever manner he can according to his wisdom and as such argument lasted only for about 10 minutes. Your petitioner states that the said advocate-on-record was also never asked by this Hon’ble Court about his satisfaction with regard to the conclusion of the argument nor any such satisfaction was submitted by the said learned advocate-on-record of your petitioner.” 9. The appellant suggests that the clear case of the respondent no.l1 herein before the trial Judge was that the trial Judge had recorded something that had not transpired in court on the particular date. The appellant submits that despite such attack against the trial Judge, the Judge was clear in his conclusion that whatever had been recorded in the judgment of March 20, 2015 was how things panned out before him. 10. Before referring to the findings and observations of the trial Judge on the recalling application carried by the eleventh defendant, it is necessary to see some parts of the judgment of March 20, 2015. 11. It is evident from such judgment that the witness called by the respondent no.11, then aged 73, was present in court for a number of days prior to when he took the stand as a witness. In course of his cross-examination, such witness “started complaining of uneasiness and illness” though he had completed his examination-in-chief without any difficulty. The said witness, as recorded in the judgment of March 20, 2015, initially wanted to sit down and give evidence, which was allowed. He next prayed for an adjournment. An adjournment was granted for a day. On the following day, the said witness presented himself for cross-examination. After taking a few questions, the witness again started complaining of uneasiness and indicated that he would be unable to remain in court for any longer duration. Again, a prayer for adjournment was made by the witness. 12. The judgment of March 20, 2015 goes on to record that in view of the relevant witness complaining of discomfort, the Judge requested counsel conducting the cross-examination to conclude the same as expeditiously as possible. Counsel cross-examining the witness curtailed the process and concluded it as expeditiously as desired by the Court. 12. The judgment of March 20, 2015 goes on to record that in view of the relevant witness complaining of discomfort, the Judge requested counsel conducting the cross-examination to conclude the same as expeditiously as possible. Counsel cross-examining the witness curtailed the process and concluded it as expeditiously as desired by the Court. The judgment then goes on to record that “after the cross examination being over the witness of the defendant no.11 continued to sit in the Court till the time of dictating the judgment without showing any sign of uneasiness, discomfiture or illness for which he had been praying for adjourning the hearing.” The matter is of such importance, particularly the role of lawyers in the dispensation of justice, that what is recorded further in the judgment of March 20, 2015 must be seen to understand the circumstances in which the recalling application was carried to the trial court. 13. The judgment of March 20, 2015 records that upon such conduct of the witness of the defendant no.11 being “brought to the notice of the learned Senior Advocate for the defendant no.11 when he commenced his argument… It was submitted … that the conduct of the witness… need not be noticed by the Court and that it was beyond the jurisdiction of the Court to look into the conduct of a witness.” It is further recorded in the judgment as follows: “Since I had raised the conduct of the witness of the defendant no.11 for discussion at the hearing, which he (Senior Advocate representing the defendant no.11) perceived to be against his client, he submitted that I should release the matter as his client would not receive justice.” 14. It is not necessary to quote any further from the judgment of March 20, 2015 since the order impugned and the findings and observations therein complete the rest of the narrative relevant for the present purpose. It may only suffice to record that a decree was granted in terms of the first relief in the plaint and the plaintiff was also found to be entitled to a decree for Rs.7,34,816/- on account of unpaid rent together with interest at the rate of 12 per cent per annum. Costs assessed at Rs.1.50 lakh were also awarded. 15. It may only suffice to record that a decree was granted in terms of the first relief in the plaint and the plaintiff was also found to be entitled to a decree for Rs.7,34,816/- on account of unpaid rent together with interest at the rate of 12 per cent per annum. Costs assessed at Rs.1.50 lakh were also awarded. 15. Upon the recalling application being filed and the nature of the allegations therein being as reflected in paragraphs 12 and 13 thereof quoted above, the trial court recorded in its conclusion as follows: “To the best of my recollection I have correctly narrated the incidents happening in Court on that date to the best of my ability in my judgment dated March 20, 2015. This I say with all due respect and deference to the learned Senior Advocate appearing on behalf of the defendant no.11. would have proceeded to dismiss the application on such ground only. However, I propose not to do so, the reason being that justice must not only be done but it must be seen to be done.” 16. It must not also be missed that earlier in the body of the impugned judgment it is recorded that counsel for the defendant no.11, “repeatedly clarifies that although various grounds have been made in the petition he is not pressing all of them and he is limiting the prayer to an opportunity of hearing.” 17. The trial court dispelled every ground canvassed by the defendant No.11, yet merely on the notion that justice “must be seen to be done” allowed the application by recalling the judgment and decree of March 20, 2015. 18. It has often been the practice to carry recalling applications in this Court almost at the drop of a hat. Since there is no specific provision in the Code of Civil Procedure, 1908 or in the Rules on the Original Side of this Court recognising a recalling application, such application has per force to be regarded as one made under Section 151 of the Code by invoking the inherent jurisdiction of the Court. Section 151 of the Code may include the world within itself, but it does not provide for an alternative remedy when a remedy in such regard is already recognised in the Code. Equally, Section 151 of the Code is not a panacea for what may be barred under the Code. Section 151 of the Code may include the world within itself, but it does not provide for an alternative remedy when a remedy in such regard is already recognised in the Code. Equally, Section 151 of the Code is not a panacea for what may be barred under the Code. In short, Section 151 of the Code is the repository of all that is necessary to ensure that justice is done, but which is not specifically provided for in the Code or is not prohibited thereby. 19. Upon an order being pronounced – particularly something as formal as a judgment and decree – a person aggrieved thereby may appeal there against or seek a review thereof on the limited grounds recognised in Section 114 of the Code and Order 47 thereof or, in very limited situations, apply for recalling the order. Ordinarily, an application for recalling an order should not be entertained if the same relief can be granted by way of a review. Again, ordinarily, a review should not be entertained if the grounds therefore as recognised in the Code are not made out and the judgment or order is more amenable to correction by way of an appeal. 20. In the present case, the defendant no.11 was heard. The evidence of its witness was taken into account and arguments put forth on its behalf were noticed in course of the judgment and decree of March 20, 2015. The allegation with which the recalling application was carried to the trial Judge, that the defendant no.11 had not been given a proper hearing, was squarely repelled in the trial Judge holding as quoted above that what transpired in Court had been appropriately recorded in the judgment of March 20, 2015. It may bear repetition that the judgment of March 20, 2015 recorded that no prayer for adjournment had been made on behalf of the defendant no.11, that counsel for the defendant no.11 had been heard and counsel agreed that he had been satisfactorily heard. If such was the recording in the judgment of March 20, 2015 and such recording was maintained despite the allegations levelled against the judge in the recalling application, there was no room of any merciful or any fanciful consideration to reopen a matter so formally closed as by a judgment and decree. If such was the recording in the judgment of March 20, 2015 and such recording was maintained despite the allegations levelled against the judge in the recalling application, there was no room of any merciful or any fanciful consideration to reopen a matter so formally closed as by a judgment and decree. Clearly, the Judge was shaken and intimidated by the tenor of the application and the order is a result of such extraneous consideration which is not justified by a line of observation or finding in the paragraphs that precede the operative part of the order. 21. Indeed, the recalling application, in such circumstances, was completely unwarranted as the grounds contained therein were more suitable to be carried to an appeal. To the extent the defendant no.11 wanted to contend that what transpired in Court on March 20, 2015 was not accurately reflected in the judgment dated March 20, 2015, the defendant has failed. Surely, if an appeal is lodged against the judgment and decree of March 20, 2015, such aspect of the matter will fall for consideration. But once the trial Judge recorded that the judgment of March 20, 2015 accurately reflected what transpired in Court, there was no room to reopen the matter for a further hearing whether on any legal maxim of justice being seen to be done or any like cliche. 22. If a recalling application had to be filed on the ground that the defendant No.11 could not be adequately represented at the argument stage, such application ought to have come on the very next day or within a day or two after March 20, 2015 or, at any rate, within a short time of the judgment being uploaded on the High Court website. There is a line in the recalling application, which was verified by an affidavit of May 8, 2015, that though the order was available on the High Court website earlier, the defendant No.11 had been advised to file the application only after a certified copy of the judgment was received. If such was the advice, a review in proper form ought to have been filed along with a memorandum and the grounds appropriate for a review. It is possible that there may have been some other design to the recalling application being filed when it was. 23. If such was the advice, a review in proper form ought to have been filed along with a memorandum and the grounds appropriate for a review. It is possible that there may have been some other design to the recalling application being filed when it was. 23. Before parting with this matter and so that this Bench is also not at the receiving end of the recalcitrant litigant that is the eleventh defendant, it must be recorded that upon counsel for such party being asked whether paper-books were required to be filed for the present appeal to be heard, it was submitted that the matter may be heard on the basis of the papers which were already available. However, it was also the submission on behalf of the defendant no.11 that the appeal stood disposed of by the order dated February 9, 2016, which submission has not been accepted in view of the express contrary finding of the Supreme Court in the order dated May 5, 2017. 24. The order dated September 23, 2015 stands set aside. The defendant no.11 will pay costs assessed at Rs.50,000/- to the plaintiff and a further sum of Rs.50,000/- to the West Bengal State Legal Services Authority within a fortnight from date. 25. APO No.455 of 2015 along with GA No.3473 of 2015 and GA No.3668 of 2017 stand disposed of.