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Scientific Instrument and Chemical Company Vs. Vishwanath Poddar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberAppeal No. 220 of 1981
Judge
Reported inAIR1984Cal235
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rule 13 - Order 43, Rule 1
AppellantScientific Instrument and Chemical Company
RespondentVishwanath Poddar
Advocates:S. Das, Adv.
DispositionAppeal dismissed
Excerpt:
- .....arrived at his bank namely, union bank of india at hatibagan on his way to court to collect some bank drafts. he alleged that the bank drafts became ready and delivered to him at about 11.15 a. m. and he boarded a tram for delhousie square but he was caught up in a traffic jam. he alleged that even after walking to acharya prafulla chandra road he tried to hire a taxi but had difficulties in getting the same and he eventually reached the court at 1-20 p. m. in the judgment appealed against the first ground urged has been overruled on a finding that the absence of the senior counsel had not handicapped the defendant materially as the junior counsel of the petitioner bhaskar kumar roy was present in court and helped the court in settling the issues. the second ground was negatived by the.....
Judgment:

N.G. Chaudhuri, J.

1. This appeal directed against the order dated 22nd July 1981 passed by Mrs. Justice Khastgir refusingto set aside the ex parte decree passed against the petitioner in suit No. 362 of 1973.

2. From 2nd July, 1981 the suit appeared in the list. On 6-7-81 the suit was called on several times, issues were settled, evidence taken on commission formally tendered and relevant portions thereof placed. The appellant's counsel prayed for leave to retire and the suit was decreed ex parte. The application for setting aside the ex parte decree was filed on 17-7-81 by Ranjit Das on behalf of the defendant under Order 9, Rule 13 C. P. Code. In the said petition two things were principally alleged. The first plea was a plea of illness of Dr. S. Das, the Senior counsel of the petitioner and his inability to appear at the time the suit was called for hearing. The second and more important plea was that on the date in question that is 6th July, 1981 the petitioner was suffering from backache, had been to the chamber of his friend Dr. Jyotish Saha, M. D. at 18A, Mohanbagan Row, Calcutta, for consultation and after consulting him arrived at his Bank namely, Union Bank of India at Hatibagan on his way to Court to collect some bank drafts. He alleged that the bank drafts became ready and delivered to him at about 11.15 A. M. and he boarded a tram for Delhousie square but he was caught up in a traffic jam. He alleged that even after walking to Acharya Prafulla Chandra Road he tried to hire a taxi but had difficulties in getting the same and he eventually reached the Court at 1-20 P. M. In the judgment appealed against the first ground urged has been overruled on a finding that the absence of the senior counsel had not handicapped the defendant materially as the junior counsel of the petitioner Bhaskar Kumar Roy was present in Court and helped the Court in settling the issues. The second ground was negatived by the Court on the ground that there was no urgency on the part of the petitioner to go to the Bank on the date the suit was expected to be taken up for hearing that is on 6-7-81. It further transpired that the petitioner had his own car and he could easily come to the court using the car. Non-user of the car on that important date by the petitioner indicated gross negligence on his part.

3. The learned advocate for the appellant petitioner assails the order appealed against and contends that the Court failed to appreciate the petitioner's case. It is also emphasized that the plea of traffic jam isborne but convincingly by reports published in National Dailies on the next day that is7-7-81.

4. We have gone through the order of Justice Mrs. Khastgir and we have no hesitation to say that the judgment is well considered and it exhaustively deals with all the pleas taken by the petitioner. We should also emphasise that on a previous occasion the suit had been decreed ex parte and was restored to file upon a similar application. That experience should have made the petitioner cautious and careful. But we find that although the suit was on the list from 2-7-81 onwards the petitioner was neither ready nor alert. It is doubtful if Ranjit Das actually appeared in , Court on 6-7-81 at 1-20 P. M. as alleged by him. Mrs. Khastgir J, in her judgment had observed that the suit itself was called 'on at about 12-15 P. M. and yet in spite of Ranjit Das's appearance in court at 1-20 P. M. neither the junior counsel nor the advocate on re-cord or his assistant brought it to the notice of the Court that Mr. Das arrived. This is significant . We are also not satisfied that there was any urgency on the part of Mr. Ranjit Das to go to his Bank at Hatibagan on 6-7-81. In para 15 of the petition under Order 9, Rule 13 it was alleged that earlier the defendant had drawn cheques in favour of the plaintiff during December, 1980, January and April, 1981 on the Indian Overseas Bank, Goal Park Branch. It is alleged that the cheques being dishonoured he was advised to pay the same by Bank drafts. So he had been to the Bank at Hatibagan. From the records it transpired that the defendant was making payments sometimes by drawing cheques in favour of the plaintiff and sometimes by having bank drafts. This conduct indicates lack of seriousness and consistency in the conduct of the defendant. We have seen the newspaper reports regarding traffic jam on 6-7-81. This report published in the Statesman shows that the jam occurred after 2 P. M. This did not in all probability prevent the petitioner from appearing in court in time. From a careful perusal of the petition itself it appears that the petitioner defendant was fondly hoping that the suit would not be taken up for hearing. For that reason reference has been made to a number of suits on the list of the Court on that day and non-examination of any witness on behalf of the plaintiff after the evidence of witnesses examined on the commission was tendered. This conduct strongly indicateslack of diligence on the part of the defendant. Considering all these we are convinced that the judgment appealed against does not call for interference.

5. In the result the appeal is dismissed on contest with costs.

Deb, C.J.

6. I agree.


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