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2019 DIGILAW 1147 (GAU)

Moin Uddin v. Abdul Hekim

2019-10-23

PRASANTA KUMAR DEKA

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JUDGMENT : Prasanta Kumar Deka, J. 1. Heard Mr. SD Purkayastha, learned counsel for the petitioners and Mr. AR Sikdar, learned counsel for the respondents. 2. The respondent No. 1 as the plaintiff filed Title Suit No. 70/2011 in the Court of learned Munsiff, Hojai at Sankardev Nagar against the present petitioners as defendants along with other defendants. The suit was filed for declaration of right, title and interest, confirmation and recovery of possession, cancellation of documents etc. The petitioners as the defendant Nos. 1, 2 & 3 filed their written statement contesting the claim of the plaintiff/respondent No. 1. The plaintiff/respondent No. 1 filed the evidence on affidavit of the witnesses on his behalf. 24.05.2016 was fixed for cross examination of the witnesses of the plaintiff side. The defendants/petitioners remained absent without steps. On 13.07.2016 the witnesses of the plaintiff side were present but there was no representation on behalf of the defendants/petitioners' side. 16.08.2016, 22.09.2016 and 01.11.2016 were fixed for cross examination of the plaintiffs' witnesses. The learned Court below on 01.11.2016 closed the stage of cross examination of the plaintiffs' witnesses and fixed 15.11.2016 for argument. On 15.11.2016, 01.12.2016 and 18.01.2017 though the plaintiff side was present but the argument of the plaintiff side was incomplete. 28.02.2017 was fixed for further argument of the plaintiffs' side. On 28.02.2017 the defendants/petitioners through the counsel filed application under Order IX Rule 13 of the CPC along with another application under Section 5 of the Limitation Act for condonation of delay. In the said application under Order IX Rule 13 CPC the petitioners stated that one Md. A. Kuddus, the engaged counsel of the defendants/petitioners was taking steps on their behalf and as because he fell serious illness due to major infection in his eyes he could not take steps on behalf of the defendants. The defendants/petitioners are rustic villagers and could not understand the procedural law and as such prayed before the Court to allow the defendants/petitioners to cross examine the witnesses of the plaintiffs' side. 3. The plaintiff/respondent No. 1 filed written objection stating that the provision of Order IX Rule 13 CPC is not applicable inasmuch as no ex parte decree was passed rather the matter proceeded ex parte on the basis of an order passed by the Court below nor there is any mention of the date of default on their part in the said petition. No medical document in support of the contention that the engaged counsel was suffering from illness was produced. After the said objection in respect of non-applicability of the provision under Order IX Rule 13 of the CPC was raised, a separate petition under Section 151 of the CPC was filed in order to invoke the provision under Order IX Rule 7 of the CPC. The learned Court below vide order dated 13.03.2018 passed in Misc. (J) Case No. 28/2017 dismissed the said petition by holding as follows:- "Having heard the rival contentions and going through the Case Records it is found that while the petitioners have pleaded the illness of their engaged counsel, they have not submitted any documents relating to the same. Moreover the later petition under Section 151 C.P.C. was filed only after the lacuna in their previous petition was highlighted in the written objection. The Order 9 Rule 7 of the C.P.C. states as follows "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 nonappearance, 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". It is clear that not only have the defendants failed to appear on the next four consecutive dates but they have also failed to show good cause backed by satisfactory documents. The petition filed by them in perfunctory and they have shown extreme lack of diligence causing unnecessary delay in this case. As such the petition is rejected. The Cross examination of the P.Ws. remains dispensed with and the suit shall proceed in its usual course. However, the defendants are allowed to take further part in the proceedings and present their arguments on the next dated fixed. Fix 25.04.18 for arguments." 4. The petitioners thereafter preferred this revision petition. Upon motion vide order dated 20.04.2018 leave was granted to Mr. Purkayastha enabling him to obtain instruction as to whether his clients were willing to lodge formal complaint against the counsel who failed to take proper steps in the proceeding before the Court below. This order was passed as it was submitted by Mr. Purkayastha that there was default on the part of Mr. Purkayastha enabling him to obtain instruction as to whether his clients were willing to lodge formal complaint against the counsel who failed to take proper steps in the proceeding before the Court below. This order was passed as it was submitted by Mr. Purkayastha that there was default on the part of Mr. A. Kuddus the engaged counsel on behalf of the petitioners inasmuch as before going for his treatment he ought to have arranged and/or intimate the petitioners which he failed to do. The petitioners filed an additional affidavit on 14.06.2018 thereby producing medical documents in support of the contention that the conducting counsel suffered from eye infection. It is further stated in the said affidavit that Md. A. Kuddus, the advocate came to Guwahati and was sitting in the audience of the Court room with all his medical records, however, on that day this Hon'ble Court was pleased to issue notice to the respondents while staying further proceeding in T.S. No. 70/2011. It is further stated that as per the instruction the petitioners went to lodge complaint but at the intervention of the advocates at Hojai and on willingness of Md. Kuddus to accompany the petitioners and be present in the Hon'ble Gauhati High Court with his medical records, the petitioners refrained themselves from lodging any complaint considering the genuineness of the illness of the conducting counsel, Md. A. Kuddus. 5. Referring to the said stand Mr. Purkayastha submits that though admittedly there was default on the part of the conducting counsel but the fact of the illness of the advocate can very well be inferred from the documents supplied to the petitioners and relied in the additional affidavit. In support of his contention that the petitioners should not suffer due to default on the part of the conducting counsel he relies on the case laws of Rafiq & Anr. Vs. Munshilal & Anr. reported in (1981) 2 SCC 788 and Sangram Singh Vs. Election Tribunal Kotah & Anr. reported in: AIR 1955 SC 425 . 6. Mr. Sikdar, countering Mr. Purkayastha submits that the conduct of the petitioners cannot be accepted inasmuch as though there was default on the part of the conducting counsel but the petitioners are also duty bound to take necessary steps in the suit. Election Tribunal Kotah & Anr. reported in: AIR 1955 SC 425 . 6. Mr. Sikdar, countering Mr. Purkayastha submits that the conduct of the petitioners cannot be accepted inasmuch as though there was default on the part of the conducting counsel but the petitioners are also duty bound to take necessary steps in the suit. Though the petitioners' presence are not required unlike the criminal proceeding in the Court but absence on consecutive four days itself shows the degree of negligent attitude on their part. Relying on the case law of Rasiklal Manikchand Dhariwal & Anr. Vs. M.S.S. Food Products reported in (2012) 2 SCC 196 Mr. Sikdar submits that the Hon'ble Supreme Court held that in such a situation Court must be strict and the suit cannot be brought back to the stage which it had already covered. At present the suit is fixed for argument and if the petition is allowed then the suit will again go back to the stage of cross examination of the witnesses of the plaintiffs side. It is further stated that where there is gross negligence and misconduct of a party in a suit the liberal approach under Order IX Rule 7 CPC cannot be applied and as such he sought for dismissal of this petition. 7. I have given due consideration to the submissions of the learned counsel appearing for the parties. Admittedly the petitioners were unrepresented in the Court for consecutive four days and on the part of the learned Court below ample scope was given for cross examination of the witnesses of the plaintiff's side as apparent from the order sheets annexed to this revision petition. It is also an admitted fact that in support of the claim that the conducting counsel was suffering from illness not even a single piece of document was placed before the Court below at least to establish the fact of illness. In the additional affidavit various medical documents showing that the conducting counsel was under treatment at Hyderabad and at Guwahati is established. In fact the counsel had suffered illness. In the case of Rafiq & Anr. Vs. Munshilal & Anr. reported in (1981) 2 SCC 788 it was held that a party after engaging a lawyer remains supremely confident that the lawyer will look after his interest. In fact the counsel had suffered illness. In the case of Rafiq & Anr. Vs. Munshilal & Anr. reported in (1981) 2 SCC 788 it was held that a party after engaging a lawyer remains supremely confident that the lawyer will look after his interest. In the present case in hand, the petitioners admittedly engaged the counsel to take steps and owing to illness of the said counsel they failed to take steps following which on behalf of the defendants cross examination could not be done of the witnesses of the plaintiff's side. The conducting Counsel ought to have taken necessary steps by engaging other counsel or informing the petitioners about his illness but the same was not done. There is a default on the part of the conducting counsel and for the said default the petitioners cannot be put to prejudice. On the other hand, the suit is fixed at argument stage and if the petitioners are allowed to cross examine the witnesses of the plaintiff side, the plaintiff/respondent would also be put to prejudice. Similarly, if the suit is allowed to be decreed without hearing the petitioners and that too, not due to their default there will be violation of the principles of natural justice because as held by the Hon'ble Supreme Court once a party engaged a lawyer he remains supremely confident that the lawyer will look after his interest and the said presumption lends support to the prayer made in this petition. On the other hand, the advantage gained by the plaintiff/respondent No. 1, considering the factual matrix and the conduct of both the learned counsel and the petitioners, I do not find any scope for interference of the impugned order which in my opinion is proper as the learned Court below cannot presume the fact of illness of the conducting counsel on behalf of the petitioner on mere pleadings bereft of any documentary evidence. But keeping in view the consequence of the decree in a suit passed by a competent civil Court and for ends of justice the learned Court below could have considered imposition of exemplary cost on the petitioners and allowed the petition as only for the lack of due diligence on the part of the defendants/petitioners the "clock had to set back" i.e. take back the proceeding to a stage which was already over. This exercise could have been done directing the petitioners to produce the documents in support of illness of the conducting counsel. There is no bar in imposition of heavy cost and allow the petition even by the lower Courts if the Court below is satisfied that there exists lack of due diligence on the aggrieved party but the situation demands to hear the aggrieved party/parties to decide the real dispute between the parties once for all. Procedural laws are not the substantive law and in appropriate cases the Court has the power to apply its discretion judicially but applying the doctrine of prejudice to the other side and in order to balance the same the Court is well within its jurisdiction to impose heavy cost on the defaulting party. 8. The documents supporting the fact of illness of the conducting counsel for the defendants/petitioners were not before the Court below. Accordingly, in my considered opinion it would be proper to set aside the impugned order which I accordingly do and the petitioners shall produce the documents supporting the fact of illness of the counsel before the Court below whereafter the Court below shall pass necessary order disposing of the application filed by the petitioners seeking grant of the leave for cross examination of witness of the plaintiff side. The petitioners shall deposit a cost of Rs. 10,000/- in the Court below and only on the said deposit the Court below shall take the petition for disposal along with the documents as hereinabove stated. The said amount of cost shall be allowed to be withdrawn by the plaintiff respondent No. 1. Accordingly, this revision is allowed. 9. The parties to this revision petition shall appear before the Court below on 6.11.2019 to deposit the cost of Rs. 10,000/- whereafter necessary order(s) will be passed.