NEMAI CHANDRA BISWAS Vs. SWAPAN NANDI
LAWS(CAL)-2010-8-144
HIGH COURT OF CALCUTTA
Decided on August 13,2010

NEMAI CHANDRA BISWAS Appellant
VERSUS
SWAPAN NANDI Respondents




JUDGEMENT

Prasenjit Mandal, J. - (1.)This application is at the instance of the plaintiffs and is directed against the judgment dated November 25, 2009 passed by the learned Civil Judge (Senior Division), Ranaghat, District Nadia in Misc. Appeal No.6 of 2007 thereby allowing the misc. appeal and thereby setting aside the order dated April 23, 2007 passed by the learned Civil Judge (Junior Division), Second Court, Ranaghat in Misc. Case No.51 of 2005. The plaintiffs/petitioners filed the Title Suit No.158 of 2002 for declaration and permanent injunction. In that suit, the defendant/opposite party appeared but the opposite party did not contest the said title suit before the learned Trial Court. That suit was decreed ex parte on August 18, 2005. Thereafter the opposite party filed the Misc. Case No.51 of 2005 under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree. Upon consideration of the evidence on record, the learned Civil Judge (Junior Division) dismissed the said misc. case. Being aggrieved, the defendant/opposite party filed the Misc. Appeal No.6 of 2007. That appeal was allowed by the impugned order. Being aggrieved, the plaintiffs/petitioners have preferred this application. Mr. Saha Roy, learned Advocate appearing on behalf of the plaintiffs/petitioners, submits that as per evidence on record the defendant/opposite party appeared in the suit but subsequently on the date of hearing he failed to take any step. From the oral evidence as well as the exhibited documents, it appears that the proforma defendant no.2, Chandan Nandi, who is none but the brother of the opposite party no.1, engaged a lawyer and a law clerk on his own choice and the said brother looked after the suit. As per materials on record, Chandan Nandi paid the lawyer's fees and other charges and the opposite party, namely, Swapan Nandi, was fully dependent upon him in connection with the proceeding of the suit and so Swapan Nandi was not aware of the proceedings of the suit. But when he came to know about the passing of the ex parte decree, he filed the application for setting aside the ex parte decree. This is not enough ground to set aside the ex parte decree and so the learned Trial Judge has rightly dismissed the misc. case under Order 9 Rule 13 of the C.P.C. But the lower appellate court has committed a wrong in allowing the misc. appeal by the impugned order. On the contrary, Mr. Chakraborty, learned Advocate appearing on behalf of the opposite party, submits that in fact the opposite party no.1, Swapan Nandi, did not look after the suit and his brother, Chandan Nandi who is the proforma defendant no.2, looked after the suit and up to July 22, 2005 the defendant took necessary steps in the suit. But, thereafter the dispute arose between the two brothers and for that reason Chandan Nandi did not take any step and he did not inform his brother, Swapan Nandi about the next date and that is why, on August 10, 2005 and August 18, 2005, no one was present on behalf of the opposite party and so the defendant/opposite party has sufficiently explained the cause for non-appearance when the suit was decreed ex parte. During the course of argument Mr. Chakraborty has referred to the following decisions: 1. Renuka Das Vs. Maya Ganguly & Anr. reported in 2009(6) Supreme 78 Mr. Chakraborty submits that the situation of the present case is similar to that one reported to in the case and so the Hon'ble Apex Court held that it was not proper for the High Court to interfere with the order of the appellate court when no perversity or arbitrariness could be found in the findings of the appellate court. In exercising revisional jurisdiction, the Hon'ble High Court is not entitled to interfere with the findings of the appellate court when the discretionary power was exercised.
(2.)West Bengal State Electricity Board Vs. Gilloram Gouri Shankar reported in 2006 (1) CHN 380. By referring to this decision Mr. Chakraborty has submitted that the Court should liberally exercise its discretionary power in setting aside an ex parte decree.
(3.)Motiur Rahman Mollah Vs. Sk. Ashar Ali & Ors. reported in 2005 (1) CHN 478. Mr. Chakraborty has drawn my attention to the paragraph 17 of the said decision which is quoted below for convenience.: 17. I have carefully considered the explanations offered by the defendant No.7 in this application. I am of the opinion that defendant No.7 has sufficiently explained the causes for the delay in filing the written statement. In the meantime, however, the written statement has been filed. The powers of the Court to hear the respondent, where ends of justice require, are unlimited. Normally, better justice is likely to be done if the two sides are heard on merits. Thus, he has submitted that clearly better justice is likely to be done if the two sides are heard on merits. Thus, upon hearing the submission of the learned Advocate of both the sides, the following point has emerged for decision in this appeal: Whether the appellate court was justified in allowing the appeal thereby setting aside the order of misc. case under Order 9 Rule 13 of the C.P.c. After hearing the learned counsel for the parties and on perusal of the materials on record, I find that admittedly though the suit was filed in the year 2002, the defendant/opposite party herein was proceeding with the suit up to July 22, 2005. According to the materials on record, a dispute arose between the two brothers namely, defendant/opposite party no.1, Swapan Nandi and Chandan Nandi. Then on August 10, 2005 and August 18, 2005 none appeared on behalf of the opposite party. The defendant/opposite party has adduced evidence that his brother, Chandan Nandi, did not inform him about the retirement of the conducting lawyer on July 22, 2005 nor did he inform him of the next dates, that is, on August 10, 2005 and August 18, 2005. That is why, the defendant/opposite party was not in a position to take steps. And then on getting information from his brother on August 20, 2005, he came to court and he came to know that the suit was decreed ex parte on September 1, 2005 and so on September 12, 2005 he filed the Misc. Case No.51 of 2005 for setting aside the ex parte decree. The learned appellate court has observed that as per evidence on record, there is sufficient cause to set aside the ex parte decree. Thus, I find that the learned appellate court has exercised the discretionary power in setting aside the ex parte decree holding that sufficient cause has been shown by the defendant/opposite party. This being the position, in view the decisions referred to above, I am of the view that the discretionary power exercised by the learned appellate court should not be interfered with. The appellate court was, therefore, justified in allowing the appeal. Accordingly, I am of the view that there is nothing to interfere with the impugned judgment. Accordingly, this application is dismissed. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.