Gurmangal Singh vs Kashi Nath Dutta

Joytosh Banerjee, J.—This proceeding under Article.227 of the constitution of India is directed against an order dated January 29, 1998 in Civil Revision Case No. 419 of 1996 by which Sri S.K. Chakraborty, Additional District Judge, 4th Court, Alipore in the district of South 24-Parganas allowed the revisional application and set aside the impugned order dated September 2, 1996 passed by Munsif, 2nd Court in Miscellaneous Case no, 31 of 1999, arising out of T.S. Case No. 4 of 1987.

Shortly put the facts and circumstances leading to the instant proceeding are as follows -Plaintiff/O.P. filed a suit for ejectment, (T.S. No. 4 of 1987) in the aforesaid court of Munsif, Sealdah on the ground of reasonable requirement, the defendant/petitioner entered appearance and filed an application u/s 17(2) (a) of the West Bengal Premises Tenancy Act. The said proceeding was contested by the Plaintiff/ O.P. by filing a written objection. Defendant/Petitioner took several adjournment for the purpose of hearing of that petition and ultimately, the said application u/s 17(2) (a) of the West Bengal Premises Tenancy Act was rejected as the defendant/Petitioner failed to take any step on September 19, 1989 and on December J 6, 1989, the suit was fixed for ex parte hearing. On that day, the aforesaid title suit was heard ex parte and the ex parte order was passed on December 20.1989. Thereafter, the Defendant/Petitioner filed a Miscellaneous Case No. 31 of 1990; The Defendant/Petitioner filed the Miscellaneous case under Order 9, Rule 13 Code of Criminal Procedure read with Section 5 of the Limitation Act for restoration of the suit. The learned Munsif by his order dated September 2, 1996 allowed that proceeding and restored the suit to its original file and number. Being aggrieved by such order, the Plaintiff/O.P. moved the appellate court, by filing the civil revision and the learned Judge allowed the application and set aside the order passed by the learned Munsif on September 2, 1996. Hence this proceeding.

I have heard the learned Advocate for the Petitioner. None has appeared on behalf of the Plaintiff/ O.P. I have also perused the order impugned carefully. It transpires that the specific plea taken by the Defendant/ Petitioner before the trial court for his absence was that his lawyer Mr. K. Velu had a heart attack in the month of June, 1989. Even prior to that he was a heart patient and as per the advice of the doctor he was on rest. In that background, he had to depend upon his Mohorar and his junior for obtaining the dates. It was the further case of the Petitioner, that at that point of time, the Defendant/Petitioner for the purpose of his treatment and also for the purpose of bringing back his family left Calcutta, ft was the further allegation that the lawyer of the Petitioner came to know alt about the ex parte decree only on April 24, 1990 from one Kapoor Singh that the Plaintiff/O.P. was proceeding with construction in the suit property. Thereafter the Plaintiff''s lawyer made an enquiry through his clerk and came to learn that the suit in question was decreed ex parte on December 20, 1989. In that background, the Petitioner/Defendant filed the application Under Order 9, Rule 13 along with an application u/s 5 Limitation Act. The learned Additional District Judge in the order impugned clearly held that although according to the case of the Defendant/Petitioner, the learned Advocate appointed by him was seriously ill and affected with heart disease but such advocate did not entrust any other advocate to deal with the suit. On consideration of the facts and circumstances, he further held that the learned Advocate was not at all sincere in conducting the case. Finally the learned Judge held on consideration of the evidence and other relevant facts and circumstances that no cogent case was made out by the Defendant/ Petitioner of the suit for restoration of the same. He also noted that the Plaintiff obtained possession of the suit property by executing the decree (ex parte) in 1990 and there was no bona fide on the part of the Defendant/O.P. shown in conducting the case. In that view of the matter, the revision application was allowed and the order for restoration of the suit passed by the learned Munsif was set aside.

The learned Advocate for the Petitioner has wanted to assail the order impugned on two fold reasons!. Firstly it is contended that the Petitioner being an innocent party who did everything in his power and expected of him, should not suffer for inaction, deliberate omission or misdemeanors of his counsel. In support of such contention, the learned Advocate has referred the case of Rafiq and Another Vs. Munshilal and Another, and Malkiat Singh and Anr. v. Joginder Singh and Ors. AIR 1998 S.C. 258 . Secondly, it is contended that since the opposite party landlord did not examine any witness, a presumption would arise that the case set up by him was not correct, in support of such contention, the learned Advocate has cited another decision of the Apex Court in Vidhyadhar Vs. Manikrao and Another, . Taking the first thing first I find, carefully going through the record that the Defendant/ Petitioner was all through indifferent towards the proceeding of the suit. On his appearance in connection with the suit; he filed an application u/s 17(2). of the West Bengal Premises Tenancy Act for determination of the relevant question whether such tenant was'' in default in payment of rent etc. But after sometime he allowed the same to be dismissed for default. In trial court, for the purpose of trial of the suit, parties are required to take active interest in the matter, by keeping in constant touch with their lawyer and to take ail the necessary steps, required for the purpose of proceeding with the suit like, payment of any cost awarded against him by the court, giving necessary instructions regarding filing of the pleadings for producing necessary documents which are in his custody before the court, for producing witnesses in support of his specific case etc. But here I find that the Advocate who was appointed by the Defendant/tenant, as per the plea taken in the restoration application was. suffering, from various diseases and having regard to the nature of the disease it cannot be said that any prudent man would feel safe and secured by reposing his entire faith on such an advocate. Two reported decisions of the Apex Court on which reliance has been placed from the side of the Petitioner are distinguishable .from the facts and circumstances of the present case. In the case of Rafique and Anr. v. Munshilal (Supra),one appeal pending before the High Court was dismissed for default and the High Court refused to restore the same. In that background, the Apex Court observed as follows:

At the time of hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watch dog of the advocate so that the latter appears in the matter when it is listed. It is no part of his job.

In the case of Malkiat Singh and Anr. v. Joginder Singh and Ors.(Supra), the Hon''ble Supreme Court held that in the facts and circumstances of the case, the Appellants cannot be said to be at fault and they should not suffer. In that case a suit for damages to the tune of Rs. 1,00,000.00 was filed by the Plaintiff and the claim in the suit was contested by the Appellants. They filed their written statement and engaged a counsel to defend the suit. The trial court, on the basis of the pleadings of the parties, framed a number of issues and proceeded to hear the suit. After two witnesses for the Plaintiff in that suit had been examined and cross-examined, the Learned Counsel for the Appellants, who had been engaged by the Appellants to defend the suit pleaded ''no instructions'' before the court. As a result of the counsel pleading no instructions, the trial court passed ex parte decree against the Appellants. In that background, the Apex Court found after observing that on perusal of the record it was revealed that the Appellants were neither careless negligent in defending the suit, the trial court ought to have issued notice to the Appellants. This is simply because of the fact that the Learned Counsel for the Appellants were duly proceeding in defending the suit and for that purpose participated in the cross-examination Of some witnesses produced from the side of the Plaintiff. Then, suddenly Learned Counsel reversed the position by submitting that he had no instruction. In that background, the Apex court held that, before proceeding with the suit ex parte, the trial court ought to have issued a notice to the Appellant. But as I have observed before, that is not the case here. In the instant case, as has been observed by the learned Additional District Judge in the revisional proceeding, the Petitioner was not at all diligent in proceeding with the suit and there was inaction and deliberate negligence in his part in contesting the suit. In this background, it is evident that the Petitioner failed to establish that he was prevented by sufficient cause from contesting the suit on the date when the same was heard ex parte and also from presenting the Petitioner for restoration of the suit within the period of limitation. In doing so, I must refer to the decision of the Hon''ble Supreme Court in the case of P.K. Ramachandran Vs. State of Kerala and Another, wherein the Apex Court observed as follows:

Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious.

In the instant case, the admitted position which came out in evidence is that following ex parte decree, the plaintiff/O.P. recovered the possession of the property through execution of the decree in the year,1990. That being the position I find that the learned revisional court is justified in holding in the facts and circumstances of the case that there was no reasonable explanation for the inordinate delay in filing the application for restoration.

No doubt, in the case of Vidhyadhar v. Mankikrao (Supra), it was decided by the Apex court that where party to the suit did not appear, into, the witness box and stated his own case on oath and did not offer himself; to be cross-examined by the other side a presumption should arise that the case set up by him was not correct. The said observation was made in connection with a mortgage suit where both the parties contested the suit on the basis of the pleadings urging their respective cases. But in the instant case, the question was whether there was sufficient cause shown by the Petitioner to condone the delay in filing his application for restoration of the suit. Here the case of the Plaintiff/ O.P. was that of a simple denial. That apart in an application under Article 227, the High Court can interfere only if it is shown that the order impugned resulting in manifest injustice or there was a patent or flagrant error in procedure or the court below arrived at a finding which is perverse or based on no material or there was an exercise of authority or discretion in arbitrary or capricious manner, besides violation of principles of natural justice. But on going through the order impugned very carefully I do not find any of the conditions as noted above present in the instant case. Therefore, it cannot be said for a moment that because the Plaintiff/ O.P. did not examine any witness in support of his case, the case of the Defendant/Petitioner should be accepted in coming to a final conclusion that such Petitioner had sufficient cause for not filing the application, for restoration in time or that he was prevented by sufficient cause from attending the court when the suit was heard ex parte.

In the results the instant proceeding must fail. Accordingly, the petition is dismissed but since the O.P, has not contested the proceeding, I make no order as to cost.