IN THE HIGH COURT AT CALCUTTA

Civil Appellate Jurisdiction

Appellate Side

PRESENT:

THE HON’BLE MR. JUSTICE PRANAB KUMAR CHATTOPADHYAY

AND
THE HON’BLE MR JUSTICE KALIDAS MUKHERJEE

F.M.A. 427 OF 1999

Aloke Kumar Dey

Versus

Ashoke Kumar Dey

For the appellant : Mr.Buddhadev Ghoshal

Mr.D. P. Bagchi

For the respondents : Mr.R. N. Dutta

Mr.P. Das

HEARD ON: 20.09.2007, 16.11.2007, 21.11.2007 and 27.11.2007

JUDGMENT ON:07.12.2007.
KALIDAS MUKHERJEE, J.

1. This appeal is directed against the order dated 17.12.1998 passed by the

learned Judge, 3rd Bench, Court of Small Causes, Kolkata in suit No. 305

of 1997 dismissing thereby the petition under Order 9 Rule 13 C.P.C. read

with Chapter 9 Rule 15 of the Provincial Small Causes Court Manual.

2. The defendant filed the said petition praying for setting aside the ex parte

decree dated 20.07.1998 and for restoration of the suit to its original file

and number. The contention of the defendant/appellant is that as against

the order dated 12.03.1998 the defendant moved a revisional application

bearing C.O. No. 1068 of 1998 before the Hon’ble High Court, Calcutta and

the same came up for hearing on 14.07.1998 and subsequently on

20.07.1998. On 20.07.98 the defendant attended the Hon’ble High Court,

Calcutta in connection with the hearing of C.O. No. 1068 of 1998 at 10.30

A.M. Moreover, there was obstruction in the Central Avenue due to the

demonstration by the lorry drivers and fruit sellers and, as a result thereof,

there was heavy traffic jam. The learned Advocate for the defendant for the

said reason attended Court at 11.45 A.M. and thereafter came to learn that

the ex parte decree had been passed as none appeared on behalf of the

defendant. It is the contention of the defendant that if the ex parte decree

is not set aside, the defendant will suffer irreparable loss.

3. The plaintiff filed a written objection against the petition under Order 9

Rule 13 C.P.C. contending, inter alia, that both the defendant and his

lawyer were seen in the ground floor of the Court premises and that the

other contentions raised in the petition under Order 9 Rule 13 were false.

4. The learned Court below upon considering the materials on record

dismissed the petition under Order 9 Rule 13 C.P.C. holding that there was

no explanation as to why the defendant did not attend the Court on

20.07.98 when the suit was fixed for hearing. As against the alleged traffic

jam along the Central Avenue, the learned Court below relied on the

evidence of the D.Ws and held that even if it be considered that there was

sufficient cause for delay in arrival of the learned Advocate of the defendant

in Court, no sufficient cause was shown by the defendant as to why he

failed to appear in Court when the suit was called for hearing. The learned

Court below observed that the defendant adopted dilatory tactics on several

occasions and even filed a petition under Section 151 C.P.C. praying for

stay of further proceedings of the present suit till the disposal of another

suit pending before learned 3rd Judge, City Civil Court, Calcutta and after

several adjournments were taken by him, the suit was fixed for hearing as

a last chance. The learned Court below further observed that the petition

for stay was dismissed on 12.03.98 and the defendant took several

adjournments on the ground that he had preferred revisional application

before the Hon’ble Court against the said order. The learned Court below
 held that the defendant miserably failed to prove that he was prevented by

any sufficient cause from appearing in Court when the suit was called for

hearing and dismissed the petition under Order 9 Rule 13 C.P.C.

5. The learned Counsel appearing on behalf of the appellant submits that the

learned Court below while dismissing the petition under Order 9 Rule 13

C.P.C. took into consideration some matters which were beyond the scope

of consideration in deciding the petition under Order 9 Rule 13 C.P.C. In

this connection learned Counsel for the appellant has referred to and relied

on the decision reported in (2000) 3 SCC 54 [G.P. Srivastava Vs. R. K.

Raizada and others] and submitted that the circumstances prior to the

date for non-appearance could not be considered in deciding the petition

under Order 9 Rule 13 C.P.C. It is contended that the learned Court below

was not justified in dismissing the petition.

6. The learned Counsel appearing on behalf of the respondent submits that

the defendant/appellant took several adjournments in the suit and the

said suit was fixed for hearing as a last chance. It is contended that the

defendant took dilatory tactics and, therefore, the learned Court below was

justified in deciding the suit ex parte. The learned counsel for the

respondent also submits that there is no ground to interfere with the

findings of the learned Court below. The learned Counsel for the
 respondent has referred to and relied on AIR 2007 NOC 114, (Bombay)

[Smt. Taramati Bhagwandas Vithlani Vs. Navjivan Gulab Gaikwad &

Ors.]

7. The reasons for the absence of the defendant on the date fixed for hearing

before the learned Court below were twofold.

Firstly, it was contended that as against the order dated

12.03.98 regarding the rejection of the prayer for stay of the

further proceedings, a civil revision was preferred by the

defendant bearing C.O. No. 1068 of 98 and in connection with

the hearing of the said application before the Hon’ble Court,

the defendant was present in the Hon’ble Court on 20.07.98.

Secondly, it was contended by the defendant that on the said

date there was heavy traffic jam along the Central Avenue due

to demonstration by the lorry drivers and fruit sellers as a

result of which the learned Advocate on his behalf arrived at

the Court at 11.45 a.m. and thereafter came to learn that the

suit was decreed ex parte.

8. The learned Court below having gone through the evidence of both sides

rejected the contention of the defendant on both the grounds. While

rejecting such contention the learned Court below took into consideration

that the defendant took several adjournments and the D.Ws deposed that

the defendant and his lawyer were seen in the ground floor at the time

when the suit was called for hearing. The learned Court below, however,

observed that even if, it be considered that there was sufficient cause for

the delay in arrival of the learned Advocate of the defendant in the Court,

no sufficient cause was shown by the defendant as to why he failed to

appear when the suit was called for hearing. It has been held by the

Hon’ble Supreme Court in the decision reported in 2000(3) SCC 54 (Supra)

that sufficient cause for non-appearance refers to the date on which the

absence was made a ground for proceeding ex parte and it cannot be

stretched to rely upon other circumstances occurring prior to that date.

It has further been held that narrow and technical approach of the Court

leads to unnecessary prolonging of litigation and justice can only be

achieved if the defendant is allowed the opportunity to prove his case

within a reasonable time. The relevant portion of the observations of the

Hon’ble Apex Court made in para 7 is quoted below:-

“………………..The ‘sufficient cause’ for non-appearance refers to

the date on which the absence was made a ground for proceeding ex
parte and cannot be stretched to rely upon other circumstances
anterior in time…………..”
The observations of the Hon’ble Apex Court in para 8 of the aforesaid

decision is quoted herein:-

“…………..Both the trial Court as also the High Court have

adopted a very narrow and technical approach in dealing with a
matter pertaining to the eviction of the appellant despite the fact that
he had put a reasonable defence and had approached the Court for
setting aside the ex parte decree, admittedly, within the statutory
period. Even if the appellant was found to be negligent, the other side
could have been compensated by costs and the ex parte decree set
aside on such other terms and conditions as were deemed proper by
the trial court. On account of the unrealistic and technical approach
adopted by the courts, the litigation between the parties has
unnecessarily been prolonged for about 17 years. The ends of justice
can be met only if the appellant-defendant is allowed opportunity to
prove his case within a reasonable time.”

The ratio of the aforesaid decision is squarely applicable in the facts

and circumstances of the instant case, in as much as, the learned Court

below while rejecting the petition under Order 9 Rule 13 C.P.C. took into

consideration the circumstances prevailing prior to the date of non-

appearance.

From the judgment and order under appeal we also find that the learned

Single Judge made the following observations:

“……….Even if it be considered, that there was sufficient

cause for delay in arrival of learned Advocate to the Court, no
sufficient cause has been shown by the defendant/ petitioner as to
why he failed to appear when the suit was called on for
hearing…………..”
We do not find sound reasoning from the aforesaid observations of the

learned Court below.

In fact the learned Court below adopted a technical approach in the

matter. Relying on the aforesaid decision we are of the considered view

that the learned Court below was not justified in dismissing the petition

under Order 9 Rule 13 C.P.C. and having regard to the fact that the

litigation in the instant case is pending for long, justice can be met if the ex

parte decree dated 20.09.98 is set aside and the defendant/appellant is

directed to pay the costs of Rs.2,500/- to the plaintiff. We, therefore, allow

the appeal and the petition under Order 9 Rule 13 C.P.C. setting aside

thereby the ex parte decree dated 20.07.98. We direct that the

defendant/appellant herein will pay the costs of Rs.2,500/- to the plaintiff

which is condition precedent to the hearing of the suit in the learned Court

below. The learned Court below is, however, directed to expedite the

hearing of the suit without granting unnecessary adjournment and dispose

of the same within six months from the date of communication of the

order.
9. The appeal is thus disposed of. Let a copy of this order be sent to the

learned Court below immediately.

Urgent Xerox certified copy of this order, if applied for, be handed over to

the parties as early as possible.

( Kalidas Mukherjee, J. )

I agree,

( Pranab Kumar Chattopadhyay, J. )