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Moti Dei Vs. Cuttack Bank Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 185 of 1962
Judge
Reported inAIR1964Ori185; 30(1964)CLT22
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 20, Rule 1
AppellantMoti Dei
RespondentCuttack Bank Ltd. and ors.
Appellant AdvocateS.K. Ray, Adv.
Respondent AdvocateS.C. Palit and ;A.B. Roy, Advs.
DispositionRevision allowed
Cases ReferredIn Keshardeo Chamaria v. Radha Kissen Chamaria
Excerpt:
.....birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 173 of 1961. 5. i am satisfied on the materials on record that sri sarkar came to a correct finding. i had given my anxious thought to the matter and for reasons discussed already i am satisfied that paragraph 4 of the affidavit dated 30-64962 filed by the decree-holder before the learned subordinate judge represented the correct state of affairs and paragraph 9 of the affidavit dated 16-10-1962 filed in the high court is a false; 6. i am satisfied that in misc. 7. the learned judge failed to exercise his jurisdiction in not recalling his order dated 23-12-1961. there is high authority for the proposition that under the inherent power of the court, the court can..........cuttack. a memorandum was filed by the advocate for the judgment-debtors on 21-8-1961. the same learned judge considered the memorandum and held that the petition of the judgment-debtors was without merit. on 27-11-61 the judgment-debtors filed another application under sections 10 and 11 of the orissa money lenders act for scaling down the decree on the ground that the decree, as defined in section 2 (g) of the orissa money lenders act, includes both a preliminary and a final decree, and that the calculation of payments till the passing of the final decree on 20-11-1950 is to be taken into consideration to determine whether the final decree is hit by section 10 (1) of the orissa money lenders act.on this application, a misc. case no. 173 of 1961 was started. on 22-12-1961 sri s......
Judgment:
ORDER

G.K. Misra, J.

1. Moti Dei, one of the judgment-debtors, is-the petitioner. The fate of the revision depends upon a narrow point. The judgment-debtors filed an application under Sections 10 and 11 of the Orissa Money Lenders Act for re-opening and scaling down the decree. It was dismissed on 17-8-1961 by Sri S.K. Misra, Subordinate Judge, Cuttack. A memorandum was filed by the advocate for the judgment-debtors on 21-8-1961. The same learned Judge considered the memorandum and held that the petition of the judgment-debtors was without merit. On 27-11-61 the judgment-debtors filed another application under Sections 10 and 11 of the Orissa Money Lenders Act for scaling down the decree on the ground that the decree, as defined in Section 2 (g) of the Orissa Money Lenders Act, includes both a preliminary and a final decree, and that the calculation of payments till the passing of the final decree on 20-11-1950 is to be taken into consideration to determine whether the final decree is hit by Section 10 (1) of the Orissa Money Lenders Act.

On this application, a Misc. case No. 173 of 1961 was started. On 22-12-1961 Sri S. Naik, Subordinate Judge, passed the order-

'Parties file haziras. Put up on 23-12-1961 for orders.'

The order passed on 23-12-1961 was to the following effect :-

'Advocate for petitioner files a memo stating that the matter may kindly be taken up after the holidays as he seeks accommodation today to witness cricket match. This Misc. Case No. 173 of 1961 under Sections 10 and 11 O.M.L. Act for scaling down interest by modifying the decree is rejected as it has been already disposed of after contest on 17-8-61 and on 28-8-1961.'

The petitioner's case is that the orders passed by Sri Naik, as evidenced by the order-sheet on 22nd and 23rd December, do not represent the correct state of affairs. On 22-12-1961 the application was heard in part and it was adjourned to 23-12-1961 for further hearing, 23-12-1961 was the last working day of the year. The learned Subordinate Judge did not at all come to Court to take up any matter and that the Counsel for the petitioner left the Court to witness cricket match between M.C.C. and the Eastern Zone at Barbati Stadium after filing the memorandum that the case might be taken up after the Christmas holidays. There was a direction from the High Court to We Subordinate Courts at Cuttack that the Advocate seeking accommodation to see the Cricket Match should be accommodated. Under the impression that he would be accommodated, the petitioner's counsel left the Court to see the match.

The learned Subordinate Judge passed no orders on the memorandum seaking accommodation, but on the contrary, heard the lawyer for the decree-holder in his chambers in the absence of the lawyer of the petitioner. On 16-1-1962 the petitioner filed an application to recall the order dated 23-12-61 and to dispose of the matter after hearing the Advocates for both sides. This application was heard by Sri. K. N. Sarkar and was dismissed on 6-74962. The Civil Revision has been filed against this order.

2. Sri Sarkar dismissed the application on two grounds. Though he came to a categorical finding that the Court did not pass any order regarding the petitioner's lawyer's memorandum for accommodation, and seems to have heard and further heard the Miscellaneous case in his chambers in the absence of the petitioner's lawyer, which was irregular, the order dated 23-12-1961 musthave been pronounced in open Court and that the Courtcannot recall such an order. He further held that as the subject-matter or the application under Sections 10 and 11 of the O.M.L. Act in Misc. Case No. 173 of 1961 had already been disposed of in Order No. 116, dated 18-8-1961, the matter cannot be reagitated again.

3. Both the grounds given by the learned Subordinate Judge, are insupportable. The second ground is wholly fantastic. Once a party files an application alleging therein certain matters for consideration, the Court is bound to hear the party. It is open to the Court to reject the party's contention, but it is not open to the Court to say that the, party is not entitled to hearing as the identical matter had been decided by a previous order. The point raised by Mr. S. K. Ray also deserves consideration. The matter was fully discussed in Sarat Chandra Deb v. Bichitranada Sahu, AIR 1951 Orissa 212. There is sharp cleavage of opinion between the Judges constitutingthe Bench. It was not open to the learned Subordinate Judge to say that the matter had been decided by a previous order and so the point could not be reagitatedwithout hearing both parties.

4. The next question for consideration is whether on point of fact that judgment-debtor's advocate was heard. On the finding of the learned Subordinate Judge that thecase was partly heard on 22nd and was fixed for further bearing to 23rd when the memorandum filed by the Advocate of the judgment-debtor was not considered and thatthe decree-holder was heard ex parte, Order No. 140dated 23-12-1961 must be set aside. The observation of Sri Sarkar, in his order dated 6-74962, that the, order must have been pronounced in open court, is one ofpure surmise and is contrary to the admitted case of theparties that the order was delivered in chambers. On the finding of the learned Judge himself, the order dated 23-12-61 is bound to be set aside and parties must be given full opportunities of being heard in Misc. CaseNo. 173 of 1961.

5. I am satisfied on the materials on record that Sri Sarkar came to a correct finding. The order dated 2242-61, as quoted above, does not show that the partieswere heard on that day. On the face of it, the orderdoes not represent the correct state of facts. Similarlyon 2342-1961, in the memorandum, filed by the Advocatefor the judgment-debtor, the prayer was that the matter was to be adjourned to a date after the holidays toaccommodate him for witnessing the Cricket Match. If Misc. Case No. 173 of 61 had been fixed to 23-124961only for delivery of orders, the advocate is not expected to make such a fantastic prayer seeking accommodation. Even if the advocate's prayer was otherwise, the learns Subordinate Judge himself could have passed the order thatthe case was fixed to 23-12-1961 not for hearing but for delivery of orders and the question of accommodation did not arise. The intrinsic evidence that can be gathered from these two orders leaves absolutely no doubt in themind that Sri Naik hurriedly passed the order on 23-12-61without applying his mind to the facts of the case justto show the disposal of the Misc. case. His conduct was hasty and injudicial.

Before the learned Subordinate Judge the decree-holder filed a counter on 30-6-1962. In paragraph 4 thereof, there is an admission to the following effect;

'That the said petition with the counter was put upon 22-12-61 in open court in the presence of Sri S. Sahu, Advocate and son-in-law of the judgment-debtor No. 1 and after hearing, it was posted to 23-12-61 for further hearing and orders but he did not then and there mention anything about his difficulties in attending on 23-12-61 and went away silently.'

The admission in this passage reflects the correct state of affairs that the matter was heard in part on 22-12-1961 and was posted for further hearing to 23-12-61. This affidavit was sworn to by one Sarbeswar Patnalk, the law Mohurir of the decree-holder, who was looking after the case, and has been signed by Sri S. Palit, Advocate for the decree-holder. This admission was taken into consideration by the learned S.C.C. Judge in his order date 6-7-1962.

In the High Court an affidavit has been filed on behalf of the decree-holder on 1640-1962 by one Durga Charan Das alleging that he is the law Muhurir of the decree-holder. Paragraph 9 of the affidavit is as follows: --

'That the said Misc. Case No. 173 of 1961 was heard on 22-11-1961 and then posted to 23-124961 in the presence of the petitioner's Advocate who is also her son-in-law, for orders only but not for further hearing and orders as stated through sheer mistake in the counter filed in the said Misc. Case.'

This paragraph is directly antithetic to the affidavit-sworn to before the learned Subordinate Judge. I had given my anxious thought to the matter and for reasons discussed already I am satisfied that paragraph 4 of the affidavit dated 30-64962 filed by the decree-holder before the learned Subordinate Judge represented the correct state of affairs and paragraph 9 of the affidavit dated 16-10-1962 filed in the High Court is a false; affidavit made to take away the effect of the admission previously made and to counteract the effect of the finding recorded by Sri K. N. Sarkar.

Filing of such false affidavit is reprehensible and more particularly on the part of a Bank, who is the decree-holder, and by the same Advocate Mr. Palit, who has signed both the applications. At one stage in the course of argument I was of opinion to take drastic steps by prosecuting Sri Durga Charan Das for filing this false affidavit. On a later consideration I am of the view that the matter need not be further pursued as the ultimate conclusion is to be deduced from certain materials on record and the observations made by me is likely to produce salutary effect of discouraging such conduct in future.

6. I am satisfied that in Misc. Case No. 173 of 1961 the judgment-debtors were not given opportunities of being Heard, and no order of a Court, however much it may be ultimately correct, can be upheld if the principles of natural justice are not followed.

7. The learned Judge failed to exercise his jurisdiction in not recalling his order dated 23-12-1961. There is high authority for the proposition that under the inherent power of the Court, the Court can rectify its ownmistake and can recall the order. In Keshardeo Chamaria v. Radha Kissen Chamaria, AIR 1953 S. C. 23, their Lordships laid down that the Court had full powers to correct its own error in exercise of its inherent powers. In the case before their Lordships, the decree-holder was not given opportunity and the Court rightly corrected its order of dismissal of the execution case even on its own initiative in the exercise of its inherent powers. Their Lordships observed that the Judge had jurisdiction to correct its own error even without entering into discussion of the grounds taken by the decree-holder or the objections raised by the judgment-debtor. In this case, Sri S. Naik committed a serious error in not granting accommodation to the Advocate for the judgment-debtors despite the existence of such a direction from the High Court. Though the matter had been fixed for hearing, he did not apply his mind to the memorandum and disposed of the case without hearing the parties on the ground that the matter had been previously decided by his predecessor. In dealing with all these, the Court committed an error and it was open to the court to recall its own order. The view of the learned Judge that -

'But, this court cannot recall or set aside its own order passed on the merits of the Misc. case, however irregular its hearing procedure might have been.'

is wholly untenable in law. The learned Judge failed to exercise jurisdiction vested in him in law.

8. The Civil Revision is accordingly followed, the Misc. Case 173 of 1961 is restored to file and the learned Subordinate Judge is directed to hear the case after giving full opportunities to the parties. The petitioner is entitled to costs throughout.

Hearing fee of Rs. 50/- (rupees fifty).


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