Skip to content


Nritya Gopal Nandi Vs. Gour Mohan Adak - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 866 of 1977
Judge
Reported inAIR1978Cal364
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 18
AppellantNritya Gopal Nandi
RespondentGour Mohan Adak
Appellant AdvocateChandra Sekhar Das, Adv.
Respondent AdvocateBidyut Kr. Banerjee, Adv.
DispositionPetition allowed
Excerpt:
- .....7, 1975. the plaintiff deposited the amount on november 15, 1975 which was permitted by the learned munsif by his order no. 27 of date in pursuance of his earlier order. thereafter, on july 16, 1976, the amendment petition was taken up for hearing in presence of the parties. the learned munsif, who was successor-in-office to the learned munsif who passed the order of october 3, 1975, was of opinion while considering the amendment petition that the order of his predecessor bearing no. 27, dated november 15, 1975 permitting the plaintiff to deposit rs. 25/- was without jurisdiction as the trial court could not act against the direction of the superior court. accordingly, application for amendment was dismissed by order no. 38 dated july 16, 1976 in view of the appellate court's.....
Judgment:
ORDER

Salil Kumar Datta, J.

1. This Rule is directed against an Order No. 43 dated November 19, 1976 rejecting plaintiff's petition for reconsideration of the earlier order of the same Court being No. 38, dated July 16, 1976. It appears that in the connected appeal the appellate Court directed that the petition for amendment of the plaint filed in the appellate court would be considered by the trial Court provided the plaintiff paid a sum of Rs. 25/- as costs to the defendant within a fortnight of the arrival of record to that Court and in default, the appeal was to stand dismissed which would mean the dismissal of the suit itself as ordered by the trial Court.

2. It appears from Order No. 26, dated October 3, 1975 that records were received back by the trial court on that date along with copy of judgment of the appellate court. The trial Court passed an order on that date directing the parties to take steps by November 15, 1975. It may be mentioned here that the Court closed for long vacation on October 6, 1975 and reopened on November 7, 1975. The plaintiff deposited the amount on November 15, 1975 which was permitted by the learned Munsif by his order No. 27 of date in pursuance of his earlier order. Thereafter, on July 16, 1976, the amendment petition was taken up for hearing in presence of the parties. The learned Munsif, who was successor-in-office to the learned Munsif who passed the order of October 3, 1975, was of opinion while considering the amendment petition that the order of his predecessor bearing No. 27, dated November 15, 1975 permitting the plaintiff to deposit Rs. 25/- was without jurisdiction as the trial court could not act against the direction of the superior Court. Accordingly, application for amendment was dismissed by order No. 38 dated July 16, 1976 in view of the appellate Court's order which inter alia provided for dismissal of the amendment petition in case the amount was not paid within fortnight of the arrival of record.

3. The plaintiff filed an application for reconsideration of the order and it appears that the learned Munsif, who was again a successor-in-office to the learned Munsif who passed the order of July 16, 1976, was of opinion that there was no ground for reconsideration of the said order of July 16, 1976. Accordingly, the petition for reconsideration was rejected by Order 43 dated November 19, 1976, this Rule is directed against this order.

4. Mr. Chandrasekhar Das, learned Advocate appearing on behalf of the plaintiff-petitioner contended that the impugned order was unsustainable in law as the plaintiff petitioner acted in terms of the order of the Court which directed him to take steps within November 15, 1975 which was duly taken. He submitted that the plaintiff should not be penalised for any error that might have been committed by the learned Munsif in permitting him to deposit beyond the time allowed by the appellate Court and his order to the effect was never challenged.

5. Mr. Bidyat Kumar Banerjee, learned Advocate appearing on behalf of the defendant-opposite party drew my attention to Order 6 Rule 18 of the Code of Civil Procedure wherein it has been provided that if a party fails to take steps within the time permitted by the Court penal consequence will follow. Further order of the learned Munsif of October 3, 1975 it was contended, was without jurisdiction in view of the appellate Court's order and the suit, in view of the default in complying with the appellate order stood automatically dismissed. The proper course for the plaintiff would have been to move the first appellate court for modification of its order which was not done.

6. It appears to me that order of the learned Munsif of October 3, 1975 was an improper order on the face of the appellate Court's, order. But it is not possible to say that the order was inherently or otherwise without jurisdiction for that reason only though the order suffers from irregularity. Every court is entitled to arrange its affairs according to its programme in the attending circumstances following always or as far as possible the directions of the superior court. If through inadvertence, error or otherwise an order contrary to the directions of the superior court is passed, such order though irregular cannot be said to be without jurisdiction. The order continues to be effective and binding on the parties when no exception is taken to it at the proper time by affected parties and a party cannot be put to peril by complying with such order, though erroneous.

7. In view of the fact that the Court granted time to the plaintiff to take steps by November 15, 1975 the plaintiff accordingly should not be penalised for an order of court which has not been challenged by the defendant, nor it appears the court's attention was drawn to the patent error in the said order. The order of October 3, 1975 remained to be an effectual order as it has not been challenged by the defendant or set aside in appropriate proceeding and it is to be remembered that there was the intervening long vacation. The learned Munsif who succeeded in office was not competent to sit on appeal or to review or to set aside the order of his predecessor as was sought to be done by his order of July 16, 1976 resulting in the dismissal of the suit itself. Accordingly, I do not think that it would be proper to penalise the plaintiff for an error, which was committed by court depriving him of the benefit given to him by the appellate Court and causing dismissal of the suit.

8. In the premises, the Rule succeeds and the impugned order is set aside and the plaintiff's application under Section 151 of the Code of Civil Procedure is allowed. The deposit made by the plaintiff on November 15, 197-6 will be deemed as deposit in compliance with appellate Court's order in the circumstances. The suit will now proceed for hearing in accordance with law.

9. The Rule is thus made absolute.

10. The petitioner will pay cost of this Rule to the opposite party. Hearing fee is assessed 3 gold mohurs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //