Satpal Tandon vs Smt. Jyotsna Ghose and Others

K.M. Yusuf, J.—The defendant petitioner has moved this revisional application against an order dated the 8th June, 1989 passed by the learned Additional District Judge, 9th Court, Alipore, in Misc. Appeal No. 61 of 1989 dismissing the defendant''s application under Order 9 Rule 13 of the CPC thereby affirming the order of the learned Munsif dated the 6th February, 1989 passed in Misc. Case No. 63 of 1985.

The petitioner was inducted as a monthly tenant in premises No. P-39, Lake View Road, Calcutta, at a monthly rent of Rs. 300/- and a Title Suit being T.S. No. 529 of 1976 was filed against the petitioner in the Third Court of the learned Munsif, Alipore, on the ground of default only. On the 12th July, 1985 the suit was listed for peremptory hearing and on that very date it was decreed ex-parte. The petitioner filed an application under Order 9 Rule 13 of the CPC being Misc. Case No. 53 of 1985 before the learned Munsif. The learned Munsif after considering the facts and circumstances of the case and by giving reasons on his findings dismissed the application. On appeal the learned Judge concurred with the findings of the learned Munsif and as said above dismissed the appeal. The learned Judge in his judgment indicated that the decree was passed on the 12th July, 1985 and after a lapse of about four years it was to be considered whether the defendant''s application for setting aside the ex-parte decree should be allowed or not. Both the courts below, in short, did not rely on the medical certificate submitted by the petitioner by one Dr. R.N. Samaddar as the courts below considered the said doctor''s qualification as not a recognised one. Dr. R.N. Samaddar has got his certificate issued by the Council of Indo-Alapathy System of Medicine, Patna. But he could not provide any proof to the effect that the said certificate is recognised by the Indian Medical Council Act by which registered medical practitioners are governed. It is also indicated in the judgment that the said Dr. Samaddar disclosed that he passed the medical examination from Bihar Medical College, but except a Higher Secondary Mark Sheet he could not produce further papers in support of his contention. Considering all these facts both the courts below came to the finding that the story of illness of the petitioner did not appear to be correct and it cannot be proved beyond doubt that he fell ill on the I2th July, 1985 and could not attend the Court. The petitioner also failed to produce any prescription in support of his illness. There was no way out for the learned Judge but to endorse the findings of the learned Munsif as the story of the illness of the petitioner could not be substantiated in the trial court.

Mrs. Pal, appearing with Mr. Kabir for the petitioner, submitted that the courts below failed to scanning the facts and going into the real question rather they confined themselves only with the qualification of the doctor concerned and to the question whether the doctor was a qualified doctor or a quack. From the grounds taken in the revisional application it appears that almost all the grounds relate to the doctor, Dr. R.N. Samaddar, and the entire emphasis of the petitioner is on the fact that the doctor was a qualified medical practitioner. Mr. Kabir has submitted that the learned Judge ought to have gone into the merit of the case and to see under what circumstances the petitioner could not attend the court and whether he was actually ill or not rather than making exercise on the subject of qualification and disqualification of the doctor concerned. In support of his contention Mr. Kabir cited two decisions-one of the Supreme Court and the other of this Court. In the case of Ajanta Transport (F) Limited, Coimbatore v. T.V.K. Transports, reported in 1975 S.C. 123, it is stated that interference in revision could be done. A grant or refusal of a stage carriage permit on totally irrelevant grounds would be ultra vires or a case of excess power and such an act would be vitiated by a material irregularity and as such interference by the High Court u/s 115 of the CPC would be justified. But, in my opinion, no such situation arises in this case. Another case of Smt. Hazera Khatun Bibi and Ors. v. Rafique Molla and Ors., reported in 1989 (2) CHN 83 is related to amending a plaint where it is observed by the Division Bench that the court should be reluctant to interfere with the concurrent findings of fact. But if the essential ingredients necessary for finding of a fact have not, in fact, been found by the courts below, the court is bound to examine the question whether injustice or wrong is done. It cannot be that injustice must be perpetuated because it has been done two or three times in a case. I do not think that the courts below failed to consider any facts on record in their finding and neglected to give their reasons and as such I do not think this case too help the petitioner.

Mr. Banerjee appearing with Mr. Mukherjee for the opposite parties submitted that the petitioner in his revisional application has throughout dealt with only with the findings of the courts below on the point of qualification of the doctor and save and except this he has nothing to say on the merits of the case. Undoubtedly the grounds, as I have stated above, deal exclusively with the doctor and the doctor alone and his qualification, and nowhere the petitioner has emphasised before the court the reasons for absence bereft of the doctor''s qualification. Mr. Banerjee cited the case of Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, and the case of M.K. Palaniappa Chettiar and Another Vs. A. Pennuswami Pillai, . Both the cases dealt with the question whether the High Court could interfere in Section 115 of the Code of Civil Procedure. Their Lordships of the Division Bench of the Supreme Court specifically held that, however, gross error of law was committed by the courts below, the High Court could not interfere u/s 115 of the CPC specially when there was no procedural error.

Apart from the aforesaid cases I think I am bound by my own decision in the case of Ajay Kumar Sinha v. Mrs. Anne Maria Barrato and Ors., reported in 1989 (1) C.L.J. 556 wherein it was held that the High Court must not sit down to scan the evidence and come to its own conclusion in revision. If finding of facts is erroneous, or even grossly erroneous, the trial court cannot be regarded to have acted illegally or with material irregularity within the ambit of Section 115 of the CPC for erroneous appreciation of materials on record and the resultant erroneous conclusion. If there is no illegality or material irregularity, the High Court has no power to interfere even though it differs, however, profoundly, from the conclusions by the courts below upon the questions of fact and law. This decision is based upon a verdict of the Division Bench of the Calcutta High Court in the case of R.S. Cambray and Co. (P.) Ltd. Vs. Bishnu Banerjee,

In the light of the discussions made hereinabove, I must say that this Court cannot interfere with the order of the learned Additional District Judge, in spite of the fact that this appears to be an unfortunate case where because of only first default the petitioner had to face this unfortunate position and that too due to his own negligence.

The application is, therefore, dismissed. There will be no order as to costs.

The learned Advocate appearing for the petitioner prays for stay of this order. The prayer is refused.