CALCUTTA HIGH COURT JUDGMENTS

RATHIN MAJUMDAR Vs. UTPAL GHOSH AND ANOTHER [CHC]-04/09/2000

In the instant case court at least could have allowed the defendant/ O/P/ No. 1 to cross-examine the P.W. 1 particularly when the ex parte order was not delivered and the same was adjourned to a different date without allowing the defendant to relegate the suit to an earlier stage. It is clear that the learned trial Judge did not pass an order under Order 8 Rule 10 treating the plaintiffs claim as admitted but passed an ex parte decree by recording ex parte evidence and for setting aside such a decree an application under Order 9 Rule 13 CPC is maintainable.

105 CalWN 64

CALCUTTA HIGH COURT

SINGLE BENCH

( Before : S.N. Bhattacharjee, J )

RATHIN MAJUMDAR — Appellant

Vs.

UTPAL GHOSH AND ANOTHER — Respondent

C.O. No. 2664 of 1995

Decided on : 04-09-2000

Civil Procedure Code, 1908 (CPC) – Order 8 Rule 10, Order 9 Rule 13, Section 115
Cases Referred

A.K.P. Haridas Vs. V.A. Madhavi Amma and Others, AIR 1988 Ker 304
M. Manick Peter and Others Vs. K. Surendranathan, AIR 1988 Ker 161
Counsel for Appearing Parties

Suchit Kumar Banerjee and Narayan Chandra Das, for the Appellant;

Jyotirmoy Bhattacharjee, for the Respondent

JUDGMENT

S.N. Bhattacharjee, J.—This application u/s 115 of CPC has been preferred against the Order No. 63 dated 28.8.95 passed by the learned Assistant District Judge, 2nd Court, Howrah in Misc. Case No. 3 of 1994. The petitioner herein filed Money Suit No. 2 of 1989 before the learned court below for recovery of Rs. 82,110/- against the Opposite Party Nos. 1 and 2. The O.Ps./defendants did not file written statement in spite of repeated adjournments granted in their favour. The learned trial Judge proceeded with the ex parte hearing of the suit rejecting the application of the defendants for adjournment. After recording ex parte evidence of P.W.1, the learned Trial Judge fixed 15.12.93 for ex parte order. On 15.12.93 as the business of the court did not permit 17.1.94 was fixed for order. On 14.1.94 the defendants filed three petitioners and the record was put up. The learned court dismissed the three petitions which are filed for vacating the order of ex parte hearing, for accepting written statement and for allowing the defendant No. 1 to cross-examine the plaintiff. By an order No. 45 dated 17.1.94 the ex parte decree was passed. Although the ordering portion runs thus:

That the instant suit be and the same is hereby decreed on contest and in the circumstances with cost. The plaintiff is found entitled to realise the sum of Rs. 82,110/- as per schedule of claim stated in the plaint. The defendants are directed to pay the said amount within 60 days from the date of this order in default the plaintiff is at liberty to have the same realised as per law.

2. On 10.2.94 the defendant No. 1 filed a Misc, Case No. 3 of 1994 under Order 9 Rule 13 CPC. The learned court below after having considered the previous orders passed by the court and the conduct of the defendant allowed the Misc. Case by its order No. 63 dated 28.8.95. This revisional application has been filed against this order.

3. It has been argued by the learned counsel for the petitioner that the learned court below in allowing the application for restoration of the suit acted illegally and with material irregularity having failed to consider that the suit was decreed on contest under Order 8 Rule 10 CPC and as such the provision under Order 9 Rule 13 has no application in the present case. He has further argued that the learned court below failed to appreciate that more than hundred adjournments were given to the O.P. of the defendant for filing written statement but the O.P. did not file the same even on the date of ex parte hearing. The learned counsel further submitted that as the O.P. No. 1 intended to file written statement and cross-examined the P.W. 1 after expiry of the ex parte proceedings the trial court was justified in rejecting the application and in proceeding with the hearing of the suit ex parte the learned court below ought not to have set aside ex parte decree. The learned counsel for the O.P. while supporting the order passed by the learned court in setting aside the decree has contended that the learned court below wrongly used the word ‘contested’ although at the beginning of the impugned order he proceeded with the suit ex parte. The learned counsel has further argued that this court in exercising revisional jurisdiction should not interfere with the impugned order whereby the O.P. has only been given an opportunity of hearing in the suit in the interest of justice and that there has not been any failure of justice.

4. It is a fact that the opposite party No. 1 did not file written statement despite numerous opportunities given to him by the learned court below and even on the date of ex parte hearing only a petition for adjournment of the ex parte hearing was filed. If the learned court by reason of the defendant’s failure to file written statement treated the claims of the plaintiff as admitted and pronounced judgment even then a petition under Order 9 Rule 13 would lie for setting aside the decree passed under Order 8 Rule 10 instead of preferring appeal. There is, however, difference in opinion among some High Courts as to whether decree passed under Order 8 Rule 10 CPC can be treated as an ex parte decree for setting aside which an application under Order 9 Rule 13 CPC shall lie. According to Delhi High Court a decree which is passed by the Court against the defendant who appears but fails or neglects to file written statement within the time granted by the court cannot be said to be an ex parte decree and cannot be set aside under Order 9 Rule 13 CPC. (Traders Bank Ltd. vs. Avtar Singh reported in AIR 1988 Del, 55). In Ramesh vs. Corporation reported in AIR 1987 Calcutta 111 it was held that if written statement was not filed within time, the trial court could accept it even at the stage when ex parte hearing is concluded and the matter is adjourned for delivery of judgment.

5. In M/s. Kuvarp Industries vs. State Bank of Mysore reported in AIR 1985 Kar 77 it has been held that the insertion of the word ‘decree’ in Rule 10 is meant to give an alternate relief under Order 9 Rule 13 CPC instead of driving the party to a regular appeal.

6. In A.K.P. Haridas Vs. V.A. Madhavi Amma and Others, it has been observed that there is nothing to indicate that the need to write a speaking and reasoned judgment is dispensed with. There is no indication that a decree passed under this Rule cannot be ex parte.

7. In M. Manick Peter and Others Vs. K. Surendranathan, it has been held that a petition under Order 9 Rule 13 is maintainable against the decree passed under Order 8 Rule 10.

8. In the instant case court at least could have allowed the defendant/ O/P/ No. 1 to cross-examine the P.W. 1 particularly when the ex parte order was not delivered and the same was adjourned to a different date without allowing the defendant to relegate the suit to an earlier stage. It is clear that the learned trial Judge did not pass an order under Order 8 Rule 10 treating the plaintiffs claim as admitted but passed an ex parte decree by recording ex parte evidence and for setting aside such a decree an application under Order 9 Rule 13 CPC is maintainable. The learned court below while setting aside the ex parte decree took note of all the facts and in order to render the substantial justice set aside the ex parte decree by stating cogent reasons. The learned court found that when the application of the defendant/O.P. praying for adjournment of ex parte hearing was rejected by the erstwhile Presiding Officer of the court the O.P. had sufficient reason for non-appearance on the date of ex parte hearing. Thus in arriving at this decision by assigning cogent reasons the learned court below did not commit any jurisdictional error and this court sitting in revisional jurisdiction does not see any justification to interfere with the same. I am also of the opinion that by setting aside the ex parte decree the learned court below did not act with any material irregularity. The order impugned, therefore, does not call for any interference. The revisional application is without any merit and accordingly it is dismissed without any order as to costs. Let xerox certified copy of this order be given to the Id. Advocates for courts parties.

Final Result : Dismissed