Mijanur Rahman vs Tajuddin Ahmed

T.C. Das, J.—This is an application u/s 115 read with Section 151, CPC directed against the order dated 8.3.82 passed by the learned Assistant District Judge, Barpeta in Misc. (J) Case NO. 68 of 1981 rejecting the application of the Petitioner under Order 9 Rule 9 of the CPC which was preferred for restoration of the Misc. (J) case No. 63 of 1981 dismissed for default. The Petitioner has also impugned the order dated 3.7.81 passed by the learned trial Court in dismissing the Title Suit No. 29 of 1979.

I have heard Mr. D.K. Talukdar, the learned Counsel for the Petitioner as well as Mr. A. Ali, the learned Counsel appearing on behalf of the Respondent an length. A preliminary objection has been raised by Mr. Ali, the learned Counsel for the Respondent as regards the maintainability of the revision petition. According to the learned Counsel the order complained of as impugned herein is an appeasable order and appeal lies under Order 43 Rule 1(c) of the CPC Mr. D.K. Talukdar, the learned Counsel for the Petitioner has drawn my attention to the decision of this Court rendered in (1984) J.G.L.R. 442 (Anil Chandra Roy and Ors. v. Uma Kanta Roy and Ors.) and also the case as reported in (1983) 2 G.L.R. 189 (Sri Ambika Moral v. Sri Tamizul Hoque and Anr.) In Anil Ch. Roy (supra) this Court held that two remedies are available to the Petitioner, namely, (1) either he can apply for restoration under Order 9 Rule 9 of the CPC or u/s 151, CPC as the case may be and (2) the Petitioner may prefer an appeal under Order 43 Rule 1(c) of the CPC and in case he avails the remedy of preferring a petition under Order 9 Rule 9, CPC the consequences of the order is subject to revisional jurisdiction of this Court and not by way of an appeal, Accepting and adopting the ratio of the aforesaid decision, I am constrained to hold that the revision is competent and as such, the preliminary objection as raised by Mr. Ali is not accepted on merit.

The facts leading to this petition may be summarised as hereunder. The Petitioner as Plaintiff filed a Title Suit being. Title Suit No. 63/77 in the Court of the Munsiff, Parpeta against the opposite party as Defendant for declaration of his right, title and interest on the land described in Schedule to the plaint along with other ancillary prayers. The suit was subsequently transferred to the Court of the learned Assistant District Judge, Barpeta for disposal which was re-numbered as Title Suit No. 29/79 in the said Court. After completion of required formalities, the learned trial Court fixed 3. 7.81 for preliminary hearing of the suit. On the said date the Plaintiff filed his hazira in Court bearing the signature of his counsel and of his own in the said hazira meaning thereby he was present in Court. The learned trial Court, however, found fault with the Plaintiff that the Plaintiff did not submit any list of the witnesses for did he take any steps for non-production of the witnesses in Court on the said date. Hence the suit was dismissed for default. The order dated 3.7.81 has been impugned in this petition. Before taking up the contents of the order, Mr. Talukdar, the learned Counsel led me to the impugned order dated 8.3.82 rejecting the application of the Petitioner filed under Order 9 Rule 9, CPC On dismissal of the suit for default the Plaintiff filed an application under Order 9 Rule 9, CPC for setting aside the order of dismissal of the suit passed on 3.7.81 but that petition was also dismissed for default. Thereafter, the Plaintiff filed another petition under Order 9 Rule 9 read with Section 151, CPC for setting aside the order of dismissal of the petition under Order 9, Rule 9, CPC made earlier in the said Court. After certain preliminary steps the learned trial Court fixed the date of hearing of the Misc. Case, namely, Misc. Case No. 68/81 to deal with the petition under Order 9 Rule 9 CPC and the objection filed by Defendant Opposite party. On 26.2.82 which was the date fixed for hearing the parties, the learned trial Court heard the arguments of the learned Counsel of the parties and posted the case till 8.3.82 for judgment and order. On the said date i.e. 8.3.82 the impugned order was passed by the learned trial Court rejecting the application of the Plaintiff made under Order 9 Rule 9, Code of Civil Procedure. Mr. Talukdar has submitted that the reasoning of learned trial Court on which the findings are based ate not at all valid reasons to dismiss the petition of the Plaintiff. On going through the impugned judgment, it appears, that the applicant did not examine any witness in support of his contention made in the petition nor could show any reason to substantiate is contention made in the petition for restoration either by examining himself or by adducing supporting evidence to show that be was prevented by sufficient cause for not appearing in Court while the Misc. Case was called on for bearing. In this context Mr. Talukdar has submitted that if the order of dismissal along with the earlier order dated 3.7.81 dismissing the suit of the Plaintiff are read together, it would be amply clear that no evidence was needed to be adduced by the Plaintiff-Petitioner to show that he was prevented from appearing in court on the date which was fixed for bearing of the suit.

I have perused the impugned orders passed in both the Misc. Cases and taking into the totality of the ratio of both the orders of dismissal of the light of the order rendered on 3.7.81 in the original Title Suit, I any convinced that the reasoning of the learned trial Court in rejecting the prayer of the Petitioner is not acceptable. On 3.7.81 while the suit was called in for hearing, the leaned trial Court dismissed the suit by the order as quoted hereinbelow:

3.7.8. Plaintiff was not found on repeated calls though hazira was filed. Today was fixed for hearing. But no witness for the Plaintiff was present and no steps was taken on behalf of the Plaintiff for non-production of the witnesses. Hence the suit is dismissed for default.

While I have stated earlier that the Impugned order in rejecting the petition of the Plaintiff under Order 9 Rule 9 in untenable, 1 set aside the impugned order rendered on 8.3.82 and also order dated 8.9.81 rendered in earlier Misc. Case No 63/81 dismissing the petition under Order 9 Rule 9, Code of Civil Procedure

Reliance is placed by Mr. Talukdar to a decision of this Court rendered in (1983) 2 GLR 189 (Sri Ambika Moral v. Sri Tamizul Hoque and Anr.) and also to another decision of the Court rendered in Arun Chandra Malakar Vs. Patilal Roy and Another, (Arun Chandra Malakar v. Patilal Roy and Anr.). I have persued the decisions referred to me by Mr. Talukdar and adopting the ratio of both the decisions, I am of the opinion that while setting aside the order of dismissal of both the Misc. Cases referred to above, the propriety or the order dated 3.7.81 as impugned herein should also be looked upon. On perusal of the impugned order it appears that "the trial Court did not find the Plaintiff on repeated calls though hazira was filed", but there is no mention at what time such calls were made but the main reason as it appears for the dismissal of the suit is for not taking steps by the Plaintiff to produce bis witness in Court. The Plaintiff may or may not examine any witness. It is not the Court to dictate as to whether any of the parties should bring their witness to prove their respective case. If the Plaintiff desires not to examine any of the witnesses and can prove his case only on documentary evidence, the Court cannot compel the Plaintiff to adduce independent evidence and to find fault with him for not producing witness in Court. In cafe of the Defendant also the decision trusts with the Defendant either to adduce evidence or not to adduce evidence in Court. If the parties decline to adduce evidence, Court is to decide the matter in dispute on the base of material available on record and dispose of the case in accordance with law. In the present ease the order of dismissal is made as because the Plaintiff did not produce his witnesses nor took any steps to produce any such witness in Court, That cannot be the reason for dismissal of the suit.

On perusal of the impugned order and upon bearing the learned Counsel of the parties, I am satisfied that the order dated 3.7.81 impugned herein is not tenable in law and is liable to be set aside as because no party can be compelled to produce a number of witnesses in Court. Accordingly, the order dated 3.7.81 is set aside and the original suit, namely, Title suit No. 29 of 1979 is restored to file. The learned Trial Court is directed to dispose of the suit as expeditiously as possible giving top priority to the case since it is a long pending case. Sona down the case records to the learned trial Court immediately. On receipt of the records, the learned trial Court shall issue notices to both the, parties intimating the date of their appearances and shall proceed with the case expeditiously.

In the result, the petition is allowed with the direction as aforesaid. The parties will bear their own costs.