Ram Awtar Kumar vs Sri Joy Deb Chandra Dey

Sahidullah Munshi, J.—Affidavit of service, filed in Court today, be taken on record.

This revisional application is directed against Order No. 295 dated 20th November, 2009 passed by the learned Civil Judge (Junior Division), 4th Court, Howrah in Title Suit No. 130 of 1978. By the order impugned the learned Court below rejected defendant/petitioners'' application under Section 151 of the Code of Civil Procedure for recalling of an Order dated 17th December, 2008, a date which was fixed for cross-examination of P.W.1 and for filing of show cause by the defendant. It may be mentioned that on 24th November, 2008, the defendant did not take any step for which he was asked to file a show cause. He was required to file a show cause on 17th December, 2008. In the petition for recalling the learned Advocate appearing for the defendant submitted that he waited in the Court on the relevant date for a considerable period of time as the Court did not sit in time. As the Court did not sit in time he left the Court and as such he could not file the show cause and in his absence the learned Court below closed the evidence of P.W.1. From the order impugned it appears that the statement of the defendant that court did not sit in time, whether it is true or false, cannot be verified at this juncture but this Court is of the view on such ground alone the Court should not have rejected the application for recalling filed under Section 151 of the Code of Civil Procedure. It is true that the conduct of the defendant cannot be appreciated but ultimate sufferer will be the party in a proceeding who cannot be pushed to penalisation for the fault of his learned Advocate.

Mr. Bhudeb Bhattacharyya, learned Senior Advocate appearing for the defendant has submitted that on 11th February, 2016 the Court passed an order to the effect that the petition under Section 151 of the Code of Civil Procedure to recall the Order dated 2nd April, 2015 was allowed ex parte. Such recalling, as it has been revealed from various orders that application for recalling was filed by the plaintiff against Order dated 2nd April, 2015 by which the suit was dismissed for default. By the Order dated 11th February, 2016 the learned Court has held that the suit was reinstated to the original file as on 2nd April, 2015 and the plaintiff has been given an opportunity to make submissions regarding abetment petition dated 23rd August, 2012 and for which the date was fixed on 15th March, 2016. Mr. Bhattacharyya is not in a position to enlighten this Court about what happened on 15th March, 2016.

In a matter like this a justice oriented approach and not a too technical or pedantic approach is expected to be adopted by the Courts. Law has been settled by the Apex Court in the case of Rafiq and another v. Munshilal and another reported in AIR 1981 S.C. 1400 that under the present adversary legal system where the parties generally appear through their Advocates, the obligation of the parties is to select his Advocate, brief him, pay the fees demanded by him and then trust his learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the Court''s procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the 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 Court to enquire as to what is happening in the Court with regard to his appeal nor is he to act as a watchdog of the Advocate that the latter appears in the matter when it is listed. It is not the job of the client if the matter is dismissed or the prayer is rejected. The only one who would suffer would not be the lawyer who did not appear but the party whose interest he represents. Therefore, it can be safely concluded that for fault of the learned Advocate the party should not suffer.

Considering such settled principles of law this Court is of the view that the learned Court ought to have allowed the application for recalling; allowed the defendants some time to cross-examine P.W.1 and thereafter to proceed with the hearing of the suit.

Be that as it may, it reveals from the certified copy of the order that the suit is still pending and nothing has been proceeded substantially after the impugned order was passed on 20th November, 2009.

Although, this Court is of the view that the order impugned cannot be sustained but the learned Court below has rightly imposed cost which does not call for any interference by this Court. Therefore, the order impugned rejecting the application for recalling of the Order dated 17th December, 2008 is set aside. However, the order directing payment of cost by the defendants is not touched by this Court. The learned Court below is directed to accept the show cause of the petitioners which may be filed, if not already filed, and to recall the Order dated 17th December, 2008 subject to payment of cost which has already been imposed by the learned Court below. The learned Court below is directed to fix a date for cross-examination of P.W.1 as the learned Court''s diary would permit.

The revisional application is allowed.

Since no one has appeared despite service Mr. Bhattacharyya is directed to communicate this order to the learned Court through the defendant''s learned Advocate in the learned Court below as also the learned Advocate appearing for the plaintiffs in the Court below.

Certified copy of the order, filed by Mr. Bhattacharyya, is taken on record.