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Benoy Krishna Rohatgi and ors. Vs. Surajbali Misra and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata High Court
Decided On
Case NumberSuit No. 1213 of 1951
Judge
Reported inAIR1963Cal100
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rule 13 - Order 47, Rule 1; ;Calcutta High Court Original Side Rules - Rules 19, 20, 21 and 22
AppellantBenoy Krishna Rohatgi and ors.
RespondentSurajbali Misra and anr.
Appellant AdvocateChandan Banerjee, Adv.
Respondent AdvocateSambhu C. Ghose, Adv.
Cases ReferredMaung Sein v. Maung Tun
Excerpt:
- .....causing a suit to be removed from the warning list or from the peremptory list of undefended suits, appearance may be entered atany time before the suit again appears in the warning list of undefended suits.8. the most important provisions relevant for the purpose of this application, are in rules 19, 20, 21 and 22 of chapter x. these rules provide that a warning list of suits about to be transferred from the prospective list to the peremptory list of defended suits shall be prepared for each court for every working day. a warning list of suits about to be transferred to the peremptory list of undefended suits shall also be prepared, from the warning list shall be taken, in turn, suits required for the peremptory list of defended suits for each of the courts, and except as.....
Judgment:

S.P. Mitra, J.

1. This is an application for review under the provisions of Order 47 Rule 1 of the Code of Civil Procedure. On 13th March, 1951 the plaintiff instituted this suit, inter alia, for the recovery of possession of the land at premises No. 12/1/1A, Khangraputty Street, in Calcutta. The suit appeared in the appropriate Prospective List C on the 17th November, 1956. Mr. M. R. Bose, a Solicitor of this Court was appearing on behalf of the defendants but in the Prospective List the name of Messrs. Mitter and Bural appeared as the defendant's attorneys. On the 12th February, 1952 the suit appeared in my Warning List. Here, again, Messrs. Milter and Bural were stated to be the defendant's solicitors. The suit was placed in my Peremptory List on the 14th February 1958. The same mistake was committed in the Peremptory List as well. On the 14th February, 1958 the suit was passed over twice and on the third occasion an ex parte decree in favour of the plaintiffs was made by me. On the 9th January 1959 Mr. M. R. Bose, Solicitor for the defendants, wrote to the plaintiffs Solicitor asking for inspection of the document disclosed by the plaintiffs. The plaintiff's Solicitor replied that an ex parte decree had already been passed on the 14th February, 1958. On January 12, 1959 the defendants' Solicitor furnished requisition to the Registrar for inspection of the records of this suit. On the 21st January, 1959 inspection was given to him. A Notice of Motion was taken out by the defendant's Solicitor on the 28th January, 1959 for setting aside the ex parte decree. The application was heard by me on the 3rd March 1959 when I dismissed the same on the ground of limitation. On the 19th March 1959 the defendant's Solicitor obtained a certified copy of the decree. He took out a Notice of Motion for condonation of the delay in making an application for review and leave to file memorandum of reviewon the 25th March 1959. I heard this application on the 2nd June 1959 and without prejudice to the respondent's contention that an application for review did not lie. I made an order, inter alia, condoning the delay and granting leave to the defendants to file their memorandum of review on or before the 6th June 1959. A Rule was issued on the 10th June 1959 calling upon the plaintiffs to show cause why the application for review should not be granted and the suit set down for re-hearing. The Rule was made returnable four weeks from date.

2. At the hearing of this application Mr. Banerjee on behalf of the petitioners has urged that the judgment and decree passed by me on the 14th February 1958 should be reviewed on account of mistake or error apparent on the face of the record or on grounds analogous thereto inasmuch as in the Warning List the name of Messrs. Mitter and Bural was printed or published as attorneys for the defendants and the name of Mr. M. R. Bose, the defendant's solicitor, was not at all printed or published in my Peremptory List of the 14th February, 1958.

3. A decree may be reviewed under Order 47, Rule 1 either on the ground of discovery of new and important matter or evidence or on account of some mistake or error apparent on the face of the record or 'for any other sufficient reason'. In Chhajju Ram v. Neki, 49 Ind App 144 : AIR 1922 PC 112. their Lordships of the Judicial Committee construed the expression 'any other sufficient reason' as meaning a reason sufficient on grounds at least analogous to those specified immediately previously. The same view was taken by the Privy Council in Bisheshwar Pratap v. Parath Nath . This view was also adopted in Hari Shankar v. Anath Nath, AIR 1949 PC 106 at pp. 110 and 111 and in M. M. B. Catholics v. M. B. Athanas us, AIR 1954 SC 526 at p. 538. Learned counsel for the petitioners has submitted to me that the mistake or error in the Prospective List, the Warning List and the Peremptory List referred to above is at least analogous to mistake or error apparent on the face of the record, and as such the ex parte decree should be set aside.

4. In K. K. S. A. L. Firm v. Maung Kya Nyun, AIR 1928 Rang 31, it was held that the phrase 'ejusdem generis' is more restricted than the word 'analogous'. In Chokkalingam v. Lakshmanan, AIR 1920 Mad 633 it was observed that

'if a party can bring an application within the provisions of Order 47, Rule 1, Civil Procedure Code, the fact that he could also have applied under Order 9 Rule 13 cannot be treated as a bar to it' and that

'a party's right of appeal is not affected by the fact that he had a right under Order 9 Rule 13 also which he did not take advantage of and it is open to the Appellate Court to set aside the ex parte decree and direct a new trial on grounds falling within Order 9 Rule 13, Civil Procedure Code. If an appeal can be allowed in that manner we see no reason to suppose why a review cannot be allowed on similar grounds.'

In Chet Narain v. Rampal, 16 Cal WN 643 it was held that the fact that the defendants against whom an ex parte decree was passed, did not apply within time under Order 9 Rule 13 of the Code of Civil Procedure for a revival of the case is no bar to his applying for a review of the decree under Order 47 Rule 1 of the Code on the ground that he was prevented by sufficient cause from appearing at the hearing. These cases were decided before Chajju Ram's case, 49 Ind App 144 : AIR 1922 PC 112. was considered by the Judicial Committee. Learned Counsel for the respondents has argued that after Chajju Ram's case 49 Ind App 144 : AIR 1922 PC 112. a sufficient cause for non-appearance cannot be a ground for an application under Order 47 Rule 1. In Tarit Bhusan v. Sridhar Salagram : AIR1942Cal99 there is an observation of Nasim All, J. that when a suit is dismissed under Order 9 Rule 8 of the Code, the suit can be restored under Order 9 Rule 9 if there was a sufficient cause for non-appearance of the plaintiff. Where the suit is dismissed under Rule 8 for default of the plaintiff owing to gross want of care and diligence on his part the suit cannot be restored under Rule 9 and in view of the decision of the Judicial Committee in Chajju Ram's case 49 Ind App 144 : AIR 1922 PC 112. it is doubtful whether the order of dismissal can be set aside by an application for review under Order 47 Rule 1 in the case of Mahadeo v Lakshmi Narayan, AIR 1925 Bom 521 it was held following the decision in Chhaju Ram's case 49 Ind App 144 : AIR 1922 PC 112. that the plaintiff whose suit had been dismissed for want of appearance under Order 9 Rule 8 has no remedy by way ot review. The fact that the applicant was absent when the suit was called on would not be a ground for review specified in Order 47 Rule 1 nor could it be a ground analogous to any of those specified in the rule. This decision of the Bombay High Court was explained in Bhairabendra v. Punyendra, AIR 1950 Assam 47 at p 48. It was observed in this case that it could not be held as a general rule that an order purporting to have been passed under Order 9 Rule 8 was not at an subject to review No such proposition was laid down by their Lordships of the Bombay High Court. The view that was taken was that the cause for non-appearance would not be a sufficient reason within the meaning of Order 47 Rule 1 nor could it be described as discovery of a new and important matter or evidence nor an error apparent on the face of the record in this case before the Assam High Court the respondent applied under Section 4 Bengal Regulation V, 1799 praying that security be taken from the appellant against whom a title suit was pending. On the 23rd November 1946 objections against the petition were put in by the appellant. The presiding officer of the Court not being present on that date his Sheristadar directed that the case be put up on the 14th December in the presence of the parties pleaders for orders. This direction was not communicated to the respondent who was not present on that day On the 14th December the respondent and his counsel were absent. The petition was dismissed under Order 9 Rule 8. It was held that the Sheristadar's direction not being the order of the Judge had no binding force. The respondent was therefore, under no obligation to appear on the 14th December when the petition wag dismissed for default, and, therefore, the petition could not be dismissed for default it was held further that the order of dismissal for default being patently Illegal, the illegality may well be regarded as mistake or error apparent on the face of the record and, therefore, could be reviewed Even if the error be not regarded as apparent it could certainly be a sufficient reason for review, for, the ground is undoubtedly analogous to a mistake or error apparent on the face of the record it was observed however following the Bombay derision that evidence hearing on the cause for non-appearance could not form a valid ground for review and the order could be reviewed only on the basis indicated above.

5. Upon consideration of these authorities it seemsto me that where a suit has been dismissed for non-appearance of the plaintiff or an ex parte decree has beenpassed for non-appearance of the defendant an application for review for an order to set aside the dismissal or to set aside the ex parte decree is maintainable provided that it can be brought within the scope or ambit of Order 47 Rule 1 as construed by the Judicial Committee in Chhaju Ram's case, 49 Ind App 144 : AIR 1922 PC 112. .

6. Mr. Ghosh has contended further that the mistake or error contemplated by Order 47 Rule 1 is confined to the judgment itself. No case for review lies if the judgment cannot be challenged on the ground that there is a mistake or error apparent on the face of it. I am unable to accept this contention of the learned counsel for the respondents. Order 47 Rule 1 speaks of the record and the judgment is a part of the records of the suit. It therefore the mistake or error is apparent on any document other than the judgment but constituting the records of the suit, I do not see why an application for review should be thrown out in Maung Sein v. Maung Tun, AIR 1929 Rang 70 it was held that the delivery of the judgment without previous notice to the parties or their pleaders was illegal. This illegal action, if it deprives a party of a very important right of obtaining leave to appeal is sufficient ground for granting a review. Carr, J. observes in this case as follows :

'I do not think that in holding this to be a sufficient cause for review I am departing from the ruling of their Lordships of the Privy Council in 49 Ind App 144 : AIR 1922 PC 112. . There was, in my opinion, an error of procedure apparent on the face of the record and this brings the matter within the view taken by their Lordships that the words 'any other sufficient reason' mean 'a reason sufficient on grounds analogous to those specified immediately previously'.

The decision in Bhairendra's case, AIR 1950 Assam 47 alsopoints to the same conclusion.

7. Now under Order 9 Rule 1 of the Code of CivilProcedure on the day fixed in the summons for the defendant to appear and answer the parties shall be in attendance at the Court house in person or by their respectivepleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court.Order 9 Rule 6c. provides that if it is proved thatthe summons was served on the defendant, but not insufficient time to enable him to appear and answer onthe day fixed in the summons, the Court shall postponethe hearing of the suit to a future day to be fixed by theCourt and shall direct notice of such day to be given tothe defendant. When under Order 9 Rule 9 the Courtmakes an order setting aside the dismissal of a suit it has to appoint a date for proceeding with the suit. Thereare similar provisions in Order 9 Rule 13. Under Order 17Rule 12. when the Court grants an adjournment ofhearing it has to fix a date for further hearing of thesuit. Order 17 Rule 2 provides that where on any day towhich the hearing of the suit is adjourned, the parties orany of them fail to appear, the Court may proceed todispose of the suit in one of the modes directed in thatbehalf by Order 9 or make such other order as it thinksfit. Under Order 18 Rule 21. on the day fixed for the hearing of the suit or any other day to which the hearing isadjourned, the party having the right to begin, shall stateis case and produce his evidence in support of the issueswhich he is bound to prove. Then under Order 20 Rule 1the Court, after the case has been heard, shall pronouncejudgment in open court either at once or at some futureday of which due notice shall be given to the parties ortheir pleaders.

7a. In the Code of Civil Procedure, therelore, in all contingencies the Court fixes the day of hearing which the parties come to knew. But the procedure on the Original Side of this Court differs in many respects. Under Chapter XVI Rules 1, 6 and 7 ot the Original Side Rules the judgment shall be pronounced in open court anda minute thereof made by the principal officer in attendance in Court. Subject to the provisions of Chapter XIIIA which provides for summary procedure in suits to recover debts or liquidated demands or for immovable property, no decree in a suit shall be passed unless the suit appears in the peremptory list of the suits for the day. A decree by consent may be made in Chambers, provided that the suit appeared in the peremptory list of suits for the day. Then under Chapter VIII Rules 4, 15, 16, 17 and 19 unless otherwise ordered, every writ of summons other than a writ of summons in a summary suit, shall require every defendant to enter an appearance and to file a written statement within such time, after service of the writ, as the Registrar may fix, having regard to the residence of the defendant or defendants as given in the plaint. In commercial suits the writ of summons shall also require the defendant to file an affidavit of documents within fourteen days of the filing the written statement. All defendants snail enter appearance to a writ of summons by filing- with the proper officer in the office of the Registrar, on or before the day fixed for his appearance in the writ, a memorandum in writing dated on the day of its delivery and containing the name and place of business of the defendant's Attorney, or stating that the defendant defends in person and containing his name and place of residence. An appearance shall be accepted, without leave, at any time before the suit has been set down in the Warning List cf undefended suits. An appearance shall not be accepted after the suit has been set down in a Warning List without special leave of a Judge to be obtained by summons in Chambers. The order granting leave to appear shall specify the time within which appearance is to be Entered and written statement, if any, is to be filed. The defendantentering appearance shall, unless otherwise ordered, pay to the plaintiff the costs which may be thrown away by reason of the suit being removed from such Warning List, such costs to be taxed by the Taxing Officer of the Court. In the event of the plaintiff causing a suit to be removed from the Warning List or from the Peremptory list of undefended suits, appearance may be entered atany time before the suit again appears in the Warning List of undefended suits.

8. The most important provisions relevant for the purpose of this application, are in Rules 19, 20, 21 and 22 of Chapter X. These rules provide that a Warning List of suits about to be transferred from the Prospective List to the Peremptory List of defended suits shall be prepared for each Court for every working day. A Warning List of suits about to be transferred to the Peremptory List of undefended suits shall also be prepared, from the Warning List shall be taken, in turn, suits required for the Peremptory List of defended suits for each of the Courts, and except as otherwise provided, no suit or proceeding shall, unless otherwise ordered, be omitted from the Peremptory List in which it ought to be placed. for each Court sitting in the exercise of Original Civil jurisdiction a Peremptory List of defended suits shall be prepared for every working day and shall be supplied with the necessary number of defended suits from the Warning List. Unless otherwise ordered, every PeremptoryList of defended suits shall contain for each day not less than 12 and not more than 20 cases.

9. It is clear therefore that the rules of the Original Side substantially differ from the provisions of the Code of Civil Procedure. The Prospective List, the Warning List and the Peremptory List must be maintained under the Original Side Rules. The rules do not provide for the printing of the Cause List or its sale to the members of the legal profession. My attention has been drawn by the department to a copy of a letter dated 30th April, 1930, addressed by the Registrar, Original Side to the Secretary to the Government of India, Home Department, Judicial and the reply to it by the Assistant Secretary to the Government of India dated the 1st August 1930. I find from these documents that in 1864 the Registrar with the approval of the presiding Judge allowed an assistant of the Court whose duty it was to compile these lists to undertake the printing thereof as a private venture and to sell them to the members of the profession. Since then the privilege had been enjoyed by one of the assistants. The Assistant Secretary to the Government of India in his letter aforesaid informed the Registrar, Original Side, that the Government had no objection to this arrangement being continued. I am told that even today the lists are printed and sold to the members of the profession under this arrangement.

10. The Prospective, Warning and PeremptoryLists are prepared, as I have said earlier, in accordancewith the provisions of Rules 19, 20, 21 and 22 of Chapter X of the Original Side Rules. It is necessary that theyshould be correctly prepared. Apart from the names ofthe parties, the name of their respective solicitors ofSupreme Court Advocates should, if at all, be correctlyset out. The petitioner's case is that the name of theirSolicitor did not appear either in the lists printed by the private agency or in the lists prepared by the department.I have seen the Department's Peremptory List of the14th February, 1958. Messrs. Mitter and Bural in thislist and not Mr. M. R. Bose are said to be the defendant'sAttorneys. Messrs. Mitter and Bural at no stage hadanything to do with this suit.

11. Mr. Ghosh learned counsel for the respondents contended that the number of the suit, the cause title and the name of the plaintiff's solicitor correctly appeared in these lists. If the defendant's solicitor was careful and diligent, he could have easily watched the progress of the suit and made arrangements for defending the action.

12. Learned counsel for the petitioners has argued, on the other hand, that a Solicitor or his clerk while scrutinising these lists locks into the columns bearing the names of the respective Attorneys for the parties or their Supreme Court Advocates in order to ascertain whether any of the suits or matters in which the Solicitor is interested is appearing therein. It is not possible or practicable for Solicitors or their clerks to follow the practices of Barristers and Advocates who plead on the Original Side to find out their matters in these lists. In the present case, the defendant's solicitor on account of mistakes or errors already referred to did not know that this suit was in the Peremptory List, and, as such, took no steps on behalf of the defendants. Indeed, the appearance of the name of Messrs. Mitter and Bural as the defendants Attorneys was positively misleading. That is also evident from the conduct of the defendant's solicitor after the ex parte decree was passed on the 14th February, 1958.

13. I am not concerned in an application underOrder 47 Rule 1 of the Code of Civil Procedurewith the evidence bearing on the cause of non-appearance.The grounds for such an application are restricted to fee terms of Order 47 Rule 1 in the context of judicialinterpretation thereof. The contentions of the learned counsel for the petitioners, however, which on the facts and in the circumstances of the instant case I am inclined to accept, may be relevant for considering whether or not an application for review of the ex parte decree should be granted 'on account of some mistake or error apparent on the face of the record' or any ground analogous thereto. The reasons advanced by the petitioners in this case for setting aside the ex parte decree are to my mind at least reasons sufficient on grounds analogous to mistakes or error apparent on the face of the record.

14. The result, therefore, is that the ex parte decree passed by me in this suit on the 14th February 1958 is set aside. The suit will appear forthwith at the top of the appropriate Prospective List with liberty to the parties to mention for early hearing. The petitioners will pay to the respondents the costs thrown away and the costs of this application. Certified for Counsel.


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