Research › Search › Judgment

Calcutta High Court · body

2019 DIGILAW 531 (CAL)

Anantalal Baijnath v. Roy George Mantosh

2019-04-25

BISWAJIT BASU

body2019
JUDGMENT : Biswajit Basu, J. 1. The revisional application under Article 227 of the Constitution of India is at the instance of the defendants in a suit for declaration and permanent injunction and is directed against the Order No. 28 dated December 17, 2018 passed by the learned Judge, Small Causes Court, Sealdah, in Misc. Case No. 47 of 2015 arising out of Title Suit No. 20 of 2015. 2. The learned Trial Judge by the order impugned has allowed an application filed by the plaintiff/opposite party no. 1 under Order 9 Rule 9 of the Code of Civil Procedure, registered as Misc. Case No. 47 of 2015 for restoration of the said Title Suit No. 20 of 2015 dismissed for default on August 31, 2015. 3. Mr. Sudip Deb, learned advocate appearing on behalf of the petitioners submits that the petitioners are challenging the order impugned firstly on the ground that the plaintiff in the application under Order 9 Rule 9 of the Code has claimed that on November 30, 2015 he came to learn from the whisper in the locality that the defendants are about to get a decree in their counterclaim and thereafter on enquiry got the information of the dismissal of the said suit but the plaintiff has not substantiated his such claim by any evidence. Secondly the learned Trial Judge is hearing the suit filed by the plaintiff/opposite party no. 1 against the petitioners for eviction analogously with the Title Suit No. 20 of 2015 and the application filed by the petitioners in the said eviction suit under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 was allowed by the learned Trial Judge vide order no. 133 dated July 4, 2015 on contest. Therefore, the plaintiff cannot allege that he was not aware of the fact of the transfer of the records of the Title Suit No. 20 of 2015 from the Court of learned Civil Judge (Senior Division), Sealdah, to the Small Causes Court, Sealdah. 4. Mr. Deb, further submits that the application of the plaintiff under Order 9 Rule 9 of the Code is wholly based on the ground that after transfer of the records from the erstwhile Court to the present Court, the plaintiff was not informed about the said transfer. 4. Mr. Deb, further submits that the application of the plaintiff under Order 9 Rule 9 of the Code is wholly based on the ground that after transfer of the records from the erstwhile Court to the present Court, the plaintiff was not informed about the said transfer. He submits that the learned Trial Judge was not under any obligation to inform the plaintiff about such transfer of record of the said suit. 5. Mr. Asish Chandra Bagchi, learned senior advocate appearing on behalf of the plaintiff/opposite party no. 1 submits that it will appear from the records that the Small Causes Court Sealdah being the Transferee Court on April 1, 2015 received the records of the said suit from the Court of learned Civil Judge(Senior Division), Sealdah and thereafter by the Order No. 125 dated April 1, 2015 fixed April 16, 2015 as the date of appearance of the parties before it with a direction to inform both sides, he submits that the plaintiff was not informed in terms of the said order. The plaintiff, for the said reason being not aware of transfer of the said suit to the said Court could not take any steps in the suit after it's transfer and as a consequence the said suit was dismissed on August 31, 2015. He places reliance on the decisions of the Hon'ble Apex Court in the case of REENA SADH V. ANJANA ENTERPRISES reported in AIR 2008 SUPREME COURT 2054 and the Hon'ble Division Bench decision of this Court in the case of OIL AND NATURAL GAS COMMISSION APPELLANT V. TRIDIB NATH SANYAL AND OTHER RESPONDENTS reported in AIR 1983 CALCUTTA 124 to contend that the learned Trial Judge after receiving the records of the suit from the erstwhile Court was under the obligation to inform the parties. 6. He further submits that in Title Suit No. 20 of 2015 the defendants filed an application under Order 7 Rule 11 of the Code and August 20, 2015 was a date fixed for hearing of the said application. 6. He further submits that in Title Suit No. 20 of 2015 the defendants filed an application under Order 7 Rule 11 of the Code and August 20, 2015 was a date fixed for hearing of the said application. The learned Trial Judge for the default of appearance of the plaintiff on the said date directed the plaintiff to show cause by the next date fixed i.e. August 31, 2015 why the suit shall not be dismissed for default and consequently for the failure of the plaintiff to file the said show cause on the said date the suit was dismissed for default. He argues that August 20, 2015 was not a date fixed for hearing of the suit, therefore, consequence of failure on the part of the plaintiff to comply the order dated August 20, 2015 cannot be the dismissal of the suit for default. 7. He finally submits that it will appear from the record that the plaintiff could not participate in the hearing of the application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 filed by the petitioners in the eviction suit, merely recording in the order disposing of the said application that the same was disposed of on contest is not suggestive that the plaintiff had the knowledge regarding transfer of the records of Title Suit No. 20 of 2015 to the Small Causes Court, Sealdah from the Court of learned Civil Judge (Senior Division), Sealdah. 8. Mr. Deb, in reply to the argument of Mr. Bagchi, submits that the decision of the Hon'ble Apex Court reported in AIR 2008 SC 2054 (supra) is not applicable in the facts and circumstance in the present case as the said decision is based on the rules of the Delhi High Court. Heard learned advocate for the parties and perused the materials on record. 9. The suit was initially filed in the Court of learned Civil Judge (Senior Division), Sealdah and was registered as Title Suit No. 54 of 2000. Subsequently the opposite party no. 1 filed another suit being Title Suit No. 36 of 2007 for eviction of the petitioners from the property described under Schedule 'C' appended to the plaint of the said suit. This Court by an order dated June 13, 2008 passed in C.O. 4377 of 2007 directed analogous trial and disposal of the said two suits. 10. 1 filed another suit being Title Suit No. 36 of 2007 for eviction of the petitioners from the property described under Schedule 'C' appended to the plaint of the said suit. This Court by an order dated June 13, 2008 passed in C.O. 4377 of 2007 directed analogous trial and disposal of the said two suits. 10. The records of Title Suit No. 54 of 2000 was directed to be sent to the Small Causes Court, Sealdah, where the suit is now pending by the Order No. 105 dated September 2, 2010 but by Order No. 106 dated September 6, 2010 the said record was taken back from the said Court for disposal of the said suit along with Title Suit No. 36 of 2007. The records of the Title Suit No. 54 of 2000 was again sent to the Small Causes Court, Sealdah, vide Order No. 124 dated March 11, 2015 and the suit was renumbered as Title Suit No. 20 of 2015. 11. In the Order No. 124 dated March 11, 2015 whereby the records of Title Suit No. 54 of 2000 was transferred to the Small Causes Court, Sealdah, for analogous trial and disposal of the said suit with Title Suit No. 36 of 2007 it has been observed that the record of the suit was not put in time as it was inadvertently misplaced. The learned Civil Judge (Senior Division), Sealdah, in the said Order No. 124 dated March 11, 2015 fixed April 16, 2015 as the date for appearance of the parties before the transferee Court i.e. the Small Causes Court, Sealdah. 12. The said transferee Court received the records of the Title Suit No. 54 of 2000 from the Court of learned Civil Judge (Senior Division), Sealdah, on April 1, 2015 and fixed April 16, 2015 as the date of appearance of the parties with a direction to inform both sides. Admittedly in compliance with the said direction the plaintiff was not informed about the date of appearance of the parties in the suit. 13. Mr. Admittedly in compliance with the said direction the plaintiff was not informed about the date of appearance of the parties in the suit. 13. Mr. Deb is right in his submission that the Hon'ble Apex Court in the decision reported in AIR 2008 SC 2054 (supra) on interpretation of Rule 6 under Chapter XIII of Delhi High Court rules has held that the presiding officer of the Court from where the matter was transferred was responsible for informing the parties regarding the transfer as also the date on which the parties were supposed to be present before the Court to which the case was transferred. The said decision, therefore, is of no help of Mr. Bagchi, in the facts and circumstances in the present case. 14. The Hon'ble Division Bench decision of this Court reported in AIR 1983 CALCUTTA 124 (supra) relied on by Mr. Bagchi, learned senior counsel is also on the point of the obligation of the Court to inform the parties or their lawyers when the case is set down before a Court after remand. 15. In the present case the obligation of the transferee Court to inform the parties about the date of their appearance before it is not the issue. The relevant issue is whether the plaintiff was informed about his date of appearance before the transferee Court incompliance of the order dated April 1, 2015 or not. In the present case the learned Trial Judge in the order impugned on a scrutiny of the records has held that the plaintiff was not informed about the said date. The said finding of the learned Trial Judge is not in dispute. Therefore, the explanation offered by the plaintiff that he could not appear before the Court on August 31, 2015 when the suit was called for hearing as he was not aware of the transfer of the said suit to the transferee Court from the Court where the suit was originally filed, would certainly be a sufficient cause, within the meaning of Order 9 Rule 9 of the Code. 16. 16. The delay in filing the application under Order 9 Rule 9 of the Code since has already been condoned by an order dated July 4, 2017 passed in C.O. No. 1279 of 2017 the acquisition of the date of knowledge of the dismissal of the suit by the plaintiff losses it's significance, therefore, the argument of Mr. Deb, in this regard fails. 17. Moreover August 20, 2015 was a date fixed for hearing of the application under Order 7 Rule 11 of the Code filed by the defendants and on the said date the plaintiff should not be directed to show cause as to why the suit shall not be dismissed for default, as the said date was not a date fixd for hearing of the suit. The order dated August 31, 2015 suffers from material irregularity on the said score also. 18. This Court is unable to accept the argument of Mr. Deb, that the order disposing the application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 filed by the petitioners in the eviction suit since records that the same was disposed of on contest, it shall be presumed that the plaintiff/opposite party no. 1 had the knowledge of the transfer of the records of the suit to the Small Causes Court, Sealdah, from the Court of learned Civil Judge(Senior Division), Sealdah, inasmuch as the preceding orders passed on the said application records the plaintiff, did not participate in the hearing of the said application. In view of the discussion made above this Court does not find any illegality and/or infirmity in the order impugned warranting intervention in it. C.O. 606 of 2019 is, therefore, dismissed. However, there will be no order as to costs. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.