Beatrice N. Benjamin vs Ruby Chandrakanta Job And Ors

This writ petition has been filed by the petitioner aggrieved against the order dated 29.11.2019 passed by the trial court, whereby, the applications filed by the respondent No.1 under Order IX Rule 9 CPC and Order IX Rule 7 CPC has been allowed.

In a suit filed by the respondent No.1, the petitioner filed counter claim. During pendency of the proceedings, on account of non-appearance of the plaintiff, the trial court dismissed the suit and ordered to proceed exparte in the counter claim.

Whereafter the present application was filed seeking restoration of the suit and setting aside of order to proceed exparte in the counter claim.

The application was resisted by the petitioner on several counts including the fact that after the counter claim was ordered to be proceeded exparte, all the evidence has been recorded.

The trial court, after hearing the parties, came to the conclusion that in the interest of justice one opportunity should be granted to the plaintiff to prosecute his suit and to defend the counter claim and, therefore, allowed the application, restored the suit and set aside the exparte order in the counter claim on imposing cost of Rs.5,000/-.

Learned counsel for the petitioner made submissions that the trial court was not justified in accepting the application filed by the plaintiff looking to the conduct and the fact that averments made in this regard in the application, were factually incorrect.

Further submissions have been made that though one counsel representing the petitioner was not well on the date when the suit was dismissed / counter claim ordered to be proceeded exparte, the plaintiff was represented by two other advocates and, therefore, the acceptance of the application was not justified.

Further objections were made that application under Section 5 of the Limitation Act was also not filed and on that count also, the application was liable to be dismissed and the trial court was not justified in accepting the application.

I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record.

The suit was filed by the plaintiff seeking partition and the petitioner filed counter claim seeking injunction. Apparently, on account of non-appearance of the counsel on the date fixed, the suit was ordered to be dismissed and counter claim was ordered to be proceeded exparte. Whereafter the application was filed alongwith affidavit of the counsel indicating the fact about his being indisposed when the order was passed.

The trial court after noticing all the submissions / contentions, came to the conclusion that normally a matter should be decided bipartite and party should be given proper opportunity of hearing before disposal of the suit and based on its determination in this regard, allowed the application.

Though there is some substance in the submissions made by learned counsel for the petitioner questioning the manner in which, the suit was being conducted, in the circumstances of the case, where the trial court has exercised its discretion in a manner, which is apparently in interest of justice, no case for interference under Article 226 and 227 of the Constitution of India is made out.

Consequently, the writ petition filed by the petitioner is dismissed. However, the trial court is directed to ensure that unnecessary adjournments in the matter are not granted and that matter is tried in an expeditious manner.