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Smt. Meghamala Roy and ors. Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 884 of 1969
Judge
Reported inAIR1985Cal91
ActsCode of Civil Procedure (CPC) , 1908 - Section 151 - Order 11, Rule 21
AppellantSmt. Meghamala Roy and ors.
RespondentState of West Bengal and ors.
Advocates:Parthasarathi Basu, Adv.
DispositionApplication dismissed
Cases ReferredBhuthnath Das v. Sahadeb Chandra Panja.
Excerpt:
- .....a full bench of this court presided over by mr. justice sankar prosad mitra, the former chief justice held that where an application under order 21 rule 90 for setting aside the sale was dismissed for default it was open to the applicant to move the court which passed the order of dismissal under section 151 to have the order of dismissal set aside. the remedy by way of appeal though available is illusory because the appellate court would have to go by the record and determine whether the appellant was prevented by sufficient cause from appearing before the trial court. the appellate court would not have any material on record to render a decision on the sufficiency of the cause and can give no relief to the appellant.5. in the case reported in : air1978cal160 balaram ojha v. star.....
Judgment:
ORDER

Padma Khastgir, J.

1. This application had been taken out by the State of West Bengal for an order that the time to file the affidavit of documents by the petitioner as originally fixed by the order dated 12-1-1982 passed by Mr. Justice D. K. Sen be extended and the petitioner be allowed time to file its affidavit of documents.

2. This suit had been filed on 26-3-1969 by one Bidyut Barani Debi inter alia for a declaration that the order dated 30-9-1966 made in Civil Rule No. 633 of 1960 by this Court in its Civil Revisional Jurisdiction was not binding on the plaintiff and/or for setting aside and/or recalling the said order as also the compromise affirmed on 21-9-1966 and filed in the Civil R. No. 633 of 1960 and Civil Rule No. 1852 of 1960 be adjudged void and for other consequential reliefs.

2A. On 16th April, 1973 the original plaintiff died intestate leaving her surviving the present plaintiffs as her only heirs and legal representatives. By an order dated 10-2-1976, Mr. Justice Pyne substituted the plaintiffs in the place and stead of the original plaintiff. The writ of summons in the suit was duly served upon the petitioner long before and it entered appearance through its advocate on record Sri R. C. Deb. On 22-3-1976, the petitioner filed its written statement. Thereafter upon the application of the plaintiff by an order dated 7-8-1980 Mr. Justice T. K. Basu allowed an amendment of the plaint incorporating there the claim of the plaintiff to the extent of Rs. 9,57,974/- being the market value of the land as on 31-12-1946. Thereafter the plaintiff made an application for discovery against the petitioner and by order dated 22nd July, 1981 Mr. Justice D. K. Sen directed the parties to file their affidavit of documents. The plaintiffs in this suit duly filed their affidavit of documents, but the petitioner State of West Bengal could not file its affidavit in time. Thereafter, the petitioner filed an application on 15-12-1981 for a peremptory order of discovery against the petitioner. On 12-1-1982 Mr. Justice D. K. Sen directed the State of West Bengal to file its affidavit of documents within four weeks from date and in default the defence was directed to be struck out. The petitioner was also directed to pay the cost of that application. It appears that under the said order the last date for filing the affidavit of documents was 9-2-1982 but the petitioner affirmed an affidavit of documents on 11-2-1982, but never chose to file the same in Court According to the petitioner it completely escaped the notice of the petitioner's advocate on record to file the same with leave of the Court inasmuch as, the original time given in the last order had already expired and the petitioner could not file the same. Thereafter, the suit appeared in the Warning List of Mrs. Justice Monuula Bose on 4-2-1983 whereupon at the instance of the petitioner the said suit was adjourned till 13-2-1983. According to the petitioner it is only then after searching the cause papers the petitioner's advocate on record found that the original affidavit of documents was never filed in Court nor any leave was obtained from this Court for extension of time nor prayed that the original time fixed by Mr. Justice D. K. Sen dated 12-1-1982 be extended enabling the petitioner to file its affidavit of documents.

3. Mr. Parthasarathi Basu, the learned advocate appeared in support of this application and submitted that this application was maintainable in view of the decision reported in : AIR1978Cal160 , : AIR1975Cal80 (FB) and submitted that the single Bench judgment of Mr. Justice Protibha Bonnerjea reported in : AIR1979Cal64 was obviously erroneous inasmuch as this judgment was passed in complete disregard of the Division Bench decision reported in : AIR1978Cal160 , the ratio whereof was completely against the order passed by the learned Single Judge. He further submitted that there was no wilful default on the part of the defendant as a result this Court should extend the time for filing of the affidavit of documents. Apart from that he submitted that Order 11 Rule 21 envisages two orders inasmuch as it provides where any party fails to comply with any order for discovery if he is a defendant his defence is liable to be struck out and be placed in the same position as if he had not defended the suit and the party seeking discovery may apply to Court for an order to that effect and the order be made accordingly. This rule according to Mr. Basu cannot be applied unless there had been a prior order of discovery. He further submitted that the power to struck out should not be exercised except in extreme case. From the said order an appeal lies but the petitioner had chosen not to prefer an appeal from the said order.

4. He further submitted that Court always has inherent power to do justice. In the case reported in : AIR1975Cal80 Smt. Bimala Devi v. Aghore Chandra Mallick, a Full Bench of this Court presided over by Mr. Justice Sankar Prosad Mitra, the former Chief Justice held that where an application under Order 21 Rule 90 for setting aside the sale was dismissed for default it was open to the applicant to move the Court which passed the order of dismissal under Section 151 to have the order of dismissal set aside. The remedy by way of appeal though available is illusory because the appellate Court would have to go by the record and determine whether the appellant was prevented by sufficient cause from appearing before the Trial Court. The appellate Court would not have any material on record to render a decision on the sufficiency of the cause and can give no relief to the appellant.

5. In the case reported in : AIR1978Cal160 Balaram Ojha v. Star Trading & Investment Ltd., a division bench of this High Court following the full Court decision held that even though an appeal lies against an order passed under Order 11 Rule 21 striking out defence, the defendant's application under Section 151 to challenge such order is competent as the appeal against such order will be insufficient to meet the necessities of the case of the defendant and hence would be ineffective and meaningless. It further held :

'It is now a well settled principle of law that when a remedy is specifically provided for in the Code, the High Court should not exercise its inherent power and any party aggrieved by an order should avail himself of the remedy so provided. But the remedy must be a real remedy and not one of form only. An order passed under Order 11 Rule 21 is undoubtedly an appealable order. By an appeal from an order, the appellant assails the propriety of the order on materials that are on record of the case. But in an appeal from an order under Rule 21 of Order 11 striking out the defence of the defendant in the absence of any material, it may be difficult for the defendant appellant to challenge such order in the appeal. Order 11 Rule 21 has conferred on the Court the power to strike out the defence if a defendant fails to discover on oath the documents in his possession. If no discovery is made within the time as directed by the Court, the defence will be struck out for default of the defendant. The defendant may have a very good explanation to offer to the Court for his failure to comply with the order of the Court to discover on oath within the time allowed. If it is held that the defendant should prefer an appeal against the order striking out his defence for his failure to discover on oath, the defendant will be deprived of an opportunity to explain his conduct. As there will be nothing on record on which the defendant may rely in justification of his failure to discover on oath, his appeal will fail.'

6. Under these circumstances in view of the law laid down both in the Full Bench Decision and the Division Bench decision of this Court as referred to above the judgment reported in : AIR1979Cal64 Balmer Lawrie & Co. Ltd. v. Assam Brook Estates Ltd. is not in accordance with the earlier decision of this Court, where Justice Mrs. Protibha Bonnerjea held that where no appeal had been preferred by the defendant from an order striking out the defence for non-compliance of the order for discovery any application filed under Section 151 was misconceived and not maintainable.

7. In the case reported in 0044/1976 : AIR1976MP175 , State of Madhya Pradesh v. Sunder Lal Jaiswal it was held that failure to answer the interrogatories was wilful inasmuch as the learned government advocate was not able to explain why the interrogatories were not answered and also if for any reason it was not possible to do so within the time allowed by the Court the Government should have applied for more time for answering the same. The learned Judges held that there was no intention on the part of the State to give an answer to the interrogatories and that was the reason why no application was made. The default was held to be wilful inasmuch as the State was aware that in default the defence was to be struck off.

8. In the case reported in : AIR1968All119 Abdul Aziz v. Raj Chhabra where it was held that Order 11 Rule 21 is divisible in two parts. Its first pan provides for, the liability of the party in default, is to incur. Its other part provides for an order that may be passed to enforce that liability on a motion being made in that behalf. That there must be a motion first and then alone an order can be passed follows from the concluding words of Rule 21.

9. In the case reported in : [1977]106ITR653(SC) Jaipur Mineral Development Syndicate. Jaipur v. Commr. of I. T.. New Delhi, where it was held that a party or its counsel may be prevented from appearing at the hearing for a variety of reasons- In such a case if a party shows subsequent to the order made that there was sufficient reason for its non-appearance, the High Court has inherent power to recall its earlier order and dispose of the matter on merits. The Courts have power in the absence of any express or implied prohibition to pass an order as may be necessary for the ends of justice or to prevent the abuse of the process of the Court to hold otherwise would result in quite a number of cases in gross miscarriage of justice. If there was sufficient cause for non-appearance and there was no lack of due diligence on the part of the litigant, the High Court was not functus officio in entertaining the application for rehearing the reference. It further held that in exercising the inherent power the Courts cannot override the express provisions of law. Court would loath to exercise such inherent power unless the party concerned approaches the Court with due diligence and shows sufficient cause.

Similarly Mr. Justice Krishna Iyer (as he then was) observed in the case reported in : [1976]1SCR803 Newahganj Sugar Mills Co. Ltd. v. Union of India quoting Benzamin Cardozo 'that the inherent power has its roots in necessity and its breadth is co-extensive with the necessity'.

In the case reported in : AIR1975Mad270 . Century Flour Mills Ltd. v. S. Suppiah a Full Bench of that High Courl held that the inherent powers of the High Court under Section 151 are wide and are not subject to any limitation.

Last of all according to Mr. Basu's submission that default on the part of the advocate on record should not visit the litigant and if necessary the advocate on record be penalised with cost. In the case reported in : [1981]3SCR509 Rafiq v. Munshilal it was held :--

'Where an appeal filed by the appellant was disposed of in absence of his counsel, so also his application for recall of order of dismissal was rejected by the High Court, the Supreme Court in appeal set aside both the orders of dismissal on ground that a party who, as per the present adversary legal system, has selected his advocate, briefed him and paid him fee can remain supremely confident that his lawyer will look after his interest and such an innocent party who has done everything in his power and expected of him, should not suffer for the inaction, deliberate omission or misdemeanour of his counsel'.

10. The learned lawyers appearing on behalf of the plaintiff on the contrary submitted that at the beginning there was an order for discovery which was not complied with by the defendant, subsequently by an order passed in the year 1982 by Mr. Justice D. K. Sen directed that the affidavit of documents to be filed within four weeks from the date of the order in default whereof the defence be struck off. Under the circumstances, the defendant is guilty of gross laches and delay in not filing the affidavit of documents within the specified period but has come up with this application after two years since the day when the defence had already been struck off. He further submitted that Section 148. Civil P. C. had no application in the facts and circumstances of this case where a conditional order had been passed for such discovery. He further submitted that Section 151. Civil P. C. has no application where there are specific provisions for such relief in the Civil P. C. itself. Thirdly he submitted that the order already passed on 12-1-1982 directing peremptory discovery within a specified period in default the defence lo be struck off had been drawn up, completed and filed and thereby perfected in every manner as a result this Court had lost seisin over the matter and has no jurisdiction to pass any order on this application.

11. In the case reported in : AIR1965Cal547 Nanalal M. Varma & Co. (Gunnies) P. Ltd. v. Gordhandas Jerambhai it has been held by a division bench of this High Court that a suit which was struck out when the suit was called on and that order having drawn up, completed and filed the jurisdiction of the Court came to an end and thereafter the Court had no power to reconsider the matter and to set aside the said order. The division bench judgment relied on various earlier judgments.

In the case reported in : AIR1970Cal231 Administrator General of West Bengal v. Kumar Purnendu Nath Tagore, Sabyasachi Mukharji. J. held :

'Until an order has been drawn up and/or perfected the Court exercising the jurisdiction in the original side of this Court retains power to alter or amend or vary that order if the Court considers it necessary for any sufficient cause or in the interests of justice. But after the order has been drawn up and perfected, the Court has no such authority to vary the decision and/or recall the order as such. These propositions are well settled'.

The learned lawyer appearing on behalf of the plaintiff further relied on the case reported in : [1971]1SCR207 Nainsingh v. Koonwarjee in support of his contention that under the inherent power of the Courts recognised by Section 151, Civil P. C. a Court has no power to do that which is prohibited by the Code.

In the case reported in : AIR1965Cal308 Bokaro & Ramgur Ltd. v. State of Bihar, a division bench of this High Court held that where a decree is passed on condition that if a certain sum of money be put in within a specified time the suits would stand decreed and in default thereof the suit would stand dismissed in such a case after the expiry of the time limited by the decree the Court loses seisin over the matter and cannot extend the time.

In the case reported in : AIR1962Cal485 Bhuthnath Das v. Sahadeb Chandra Panja. it was held :

'Where the trial Court has ordered specific performance of a contract, on a sum of money being deposited in Court within a specific time and also ordered that if the money is not put in within that time, the suit shall stand dismissed, the Court has no jurisdiction thereafter to extend the time. The deposit of money for the performance of the contract cannot be considered to be an act either prescribed or allowed by the Code and therefore Section 148. Civil P. C. has no application to such a case. Since the nature of the directions shows that time is the essence of the order the Court does not retain any jurisdiction in the suit after passing the order and therefore the question of extending time in exercise of its inherent power under Section 151. Civil P. C., cannot arise. The fact that the Court may, in the case where the deposit is made, within the time but still the defendant fails to execute the deed within the time as directed by the Court, have to take steps does not justify the conclusion that the Court has retained jurisdiction in the suit.'

'When the Court makes an order that in default of the deposit being made within the time as directed, the suit will stand dismissed the Court is in substance making an order as contemplated under the concluding portion of Section 35. Specific Relief Act'.

11A. The learned lawyer appearing on behalf of the respondents submitted that inasmuch as the order was an appellable order and such appeal not having been filed an application under Section 151, Civil P. C. was not maintainable, such contention of the learned lawyer for the plaintiff was unacceptable to this Court in view of the Full Bench decision of this Court reported in : AIR1975Cal80 and also following such decision the division bench judgment reported in : AIR1978Cal160 . Courts under inherent powers would definitely entertain such an application provided there was sufficient cause for exercise of such discretion. In the instant case it has been submitted that the only ground that had been made out in paras 16, and 17 of the petition where it had been barely stated that the non-filing of the affidavit of documents was not intentional but accidental due to inadvertence on the part of the petitioner's advocate on record in filing the same with the leave of the Court. But as indicated earlier that the said affidavit was affirmed after the date-provided in the order for filing such affidavit when the default clause had already taken effect. Secondly such affidavit although affirmed two days after the due date as indicated in the order, it was not filed for two years since the passing of the said order, nor any application was made for leave of the Court under Section 151 or for other necessary reliefs. These two paras had been verified by the deponent Sisir Kumar Saha as based on information derived from records of the Govt. of West Bengal in its Refugee Relief Rehabilitation Department.

The learned lawyers appearing on behalf of the plaintiff severely commented inasmuch as the affidavit of documents affirmed on behalf of the Govt. of West Bengal on 11-2-1982 could not remain with the records of the Govt. of West Bengal in its Refugee Relief Rehabilitation Department, but stand remains with file of the advocate on record of the State of West Bengal Mr. R. C. Deb. Apart from that it was also commented as there were no supporting affidavit affirmed from the office of the advocate on record, by the Court clerk or any other authorised person to corroborate the statements as made in the petition. Save and except such bold statement no sufficient ground had been made out by the petitioner in the petition itself.

12. In view of the order having been completed, filed and perfected in every manner, in view of the division bench judgment and the Single Bench Judgment of this Court referred to above this Court is of the view that no order could be passed on this application. Under these circumstances the application is dismissed. Cost would be the cost in the cause.


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