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2018 DIGILAW 107 (GAU)

ASSAM FINANCIAL CORPORATION v. BIMALA HAAZARIKA

2018-01-23

A.K.GOSWAMI

body2018
JUDGMENT/ORDER : Arup Kumar Goswami, J. Heard Mr. S. Chakraborty, learned counsel for the petitioners. Also heard Mr. P.J. Phukan, learned counsel appearing for the respondent Nos.1 to 3. None appears for the respondent No.4. 2. The petitioner No.1, which is a joint Financial Corporation of the State of Assam, Meghalaya, Manipur and Tripura, is a Corporation incorporated under Section 3A of the State Financial Corporations Act, 1951. It is represented by the petitioner No.2, who is the Managing Director of the petitioner No.1. 3. This application under Article 227 of the Constitution of India is filed assailing the orders dated 10.10.2012 and 18.09.2013 passed by the learned Munsiff No.1, Sivasagar in Title Suit No.17/2011 as well as the order dated 29.09.2014 passed by the learned Munsiff at Nazira in Title Suit No.45/2014 (Title Suit No.17/2011 was transferred to the Court of Munsiff at Nazira, wherein it was numbered as Title Suit No.45/2014). 4. At the very outset, Mr. Chakraborty submits that he will not question the legality and validity of the order dated 10.10.2012. 5. On 10.10.2012, the defendant Nos.1 & 2 were absent without steps and accordingly, the Court had directed that the suit shall proceed ex parte against them. By the said order, acceding to the prayer made by the learned counsel for the plaintiff, the Nazir was directed to serve the summons in respect of the respondent No.3 by hanging and the plaintiff was directed to take steps accordingly, fixing 15.11.2012 for service report of the defendant No.3. On 15.11.2012, the defendant Nos.1 & 2 filed a petition, being Petition No.1997/2012, stating that due to oversight of their advocate, steps were not taken on 10.10.2012 and accordingly, had prayed for vacating the ex parte order. 6. Relevant portion of the order dated 18.09.2013 reads as follows :- "The learned counsel for the plaintiff side objected the petition by saying that, the same has been filed beyond the period of limitation and there is no separate prayer for condoning the delay. Accordingly, the petition is not worthy of entertain. Moreover, the cause shown by the defendants is not at all satisfactory to vacate the ex-parte proceeding order. Accordingly, the learned counsel prayed for dismissing the petition. Accordingly, the petition is not worthy of entertain. Moreover, the cause shown by the defendants is not at all satisfactory to vacate the ex-parte proceeding order. Accordingly, the learned counsel prayed for dismissing the petition. It is found from the record that, due to the absence of defendant no.1 & 2 on 10.10.2012, the suit was ordered to proceed ex-parte against them fixing the suit on 15.11.2012 for S/R of defendant no.3. It is also found that, the Court was not working from 21.10.12 to 11.11.12 for Civil Vacation. Only the 12.11.12 was open and then again 13 & 14 November, 2012 was closed. Accordingly, I find that, the limitation period for filing the instant petition ends during Civil Vacation. As such, the petition should have been filed on the next opening date i.e. 12.11.12. But it was not filed on 12.11.12 and instead on 15.11.12 i.e. the next opening date. Accordingly, there is a delay of one day in filing of the instant petition, which in my view is required to be explained by the petitioner to the satisfaction of the court for condonation of the same. Since there is no prayer for condoning the delay, I find that, the instant petition was filed beyond the period of thirty days limitation and accordingly not entertain able. Hence the prayer there under is rejected." 7. Subsequently, the defendant Nos.1 & 2 filed a petition under Section 152 CPC to correct the order dated 18.09.2013 and to allow the Petition No.1997/2012. The said petition was filed on the ground that no period of limitation had been prescribed under the Limitation Act, 1963 for vacation of an ex parte order and that Article 123 of the Limitation Act, 1963 prescribes a limitation period of 1 (one) month for setting aside ex parte decree only. The said petition was dismissed holding that there was no arithmetical and clerical mistake or error occurring out of accidental slip or omission. 8. A perusal of the order dated 18.09.2013 goes to show that the learned trial Court took a period of 1 (one) month as the period of limitation for filing such application for vacating an ex parte order. However, no particular Article was relied upon while coming to the conclusion that period of limitation is 1 (one) month. 8. A perusal of the order dated 18.09.2013 goes to show that the learned trial Court took a period of 1 (one) month as the period of limitation for filing such application for vacating an ex parte order. However, no particular Article was relied upon while coming to the conclusion that period of limitation is 1 (one) month. The learned trial Court held that there was delay of 1 (one) day in filing the petition and since there was no prayer for condoning the delay, the said petition was rejected. 9. The learned counsel appearing for the respondent is unable to show which Article of the Limitation Act, 1963 provides for limitation period of 30 (thirty) days for filing a petition to vacate an ex parte order. Third division of the Schedule of Limitation Act, 1963 deals with applications and Article 137 provides a limitation period of 3 (three) years when the right to apply accrues in respect of any application for which no period of limitation is provided elsewhere in that division. 10. Order 9 Rule 6 CPC provides that where the plaintiff appears and the defendant does not appear when summons was duly served, the Court may make an order that the suit be heard ex parte. At this juncture, it will be relevant to take note of Order 9 Rule 7 CPC :- "Rule 7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance. Where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance." 11. In the instant case, the defendant Nos.1 & 2 had appeared after receipt of summons but on their failure to appear on 10.10.2012, the suit was directed to be proceeded ex parte against them. It is also relevant to note that when the aforesaid order dated 10.10.2012 was passed, the defendant No.3 was yet to be served. In the instant case, the defendant Nos.1 & 2 had appeared after receipt of summons but on their failure to appear on 10.10.2012, the suit was directed to be proceeded ex parte against them. It is also relevant to note that when the aforesaid order dated 10.10.2012 was passed, the defendant No.3 was yet to be served. Order 9 Rule 7 makes it clear that where the defendant against whom an ex parte order had been passed appears, at or before hearing, and assigns good cause for his previous non-appearance, he may be heard in answer to the suit as if he had appeared on the day fixed for his appearance, upon such terms as the Court directs as to costs or otherwise. It is to be noted that by the order dated 10.10.2012, next date was fixed on 15.11.2015 and the petition for vacating the ex parte order was filed on that very day. The petition was so filed taking a plea that the learned counsel appearing for the defendant Nos.1 & 2 overlooked the date fixed. It cannot be said that the same was not a good ground for vacation of an ex parte order. 12. In view of the above discussion, I am of the considered opinion that the learned Munsiff, Sivasagar had completely misdirected himself while rejecting the petition filed for vacation of the ex parte order dated 10.10.2012. Accordingly, the order dated 18.09.2013 is set aside. 13. So far as the petition filed under Section 152 CPC is concerned, I am in agreement with the learned Munsiff, Nazira that the order dated 18.09.2013 could not have been corrected by taking recourse to the provision contained in Section 152 CPC as there was no accidental slip or omission or clerical or arithmetical mistake in the said order dated 18.09.2013. 14. However, as the order dated 18.09.2013 has been held to be not sustainable in law and legality or otherwise of the said order being the core issue, the defendants/petitioners herein will be allowed to participate in the proceedings. 15. The petition is allowed and disposed of in terms of the above. No costs.