High Court
Case Details
CRP 189/2008 BEFORE HON’BLE MR JUSTICE S. TALAPATRA
Legal Reasoning
Heard Mr. P. J. Saikia, learned counsel appearing for the petitioner as well as Ms. J. Hazarika, learned counsel appearing for the respondent. This is a petition under Article 227 of the Constitution of India agains t the orders dated 07.12.2004, 13.12.2007 and 13.05.2008 passed by the Munsiff N o.1, Dibrugarh in Title Suit No.64 of 2007 (old T. S. No.09 of 2004). It appears from the order dated 07.12.2004 that since the petitioner hav ing received the summon did not appear and file the written statement within the time as stipulated by the statute, the Court decided to proceed with the suit e x parte against the petitioner. It appears from the record that the petitioner d id file an application for setting aside the said order dated 07.12.2004. The Mu nsiff No.1, Dibrugarh on due consideration of the matter declined to set aside t he said ex parte order dated 07.12.2004. The petitioner did not set in any furth er action against the said order rejecting the prayer for setting aside the orde r for proceeding ex parte. In the meanwhile, by the order dated 16.08.2007 the plaint was amended. Initially, though the petitioner was afforded opportunity to file the written st atement on the amended part of the plaint but by the order dated 13.12.2007 the said order was also rectified holding that (cid:28)Perusal of the record reveal that vide order dated 07.12.2004, the case has ord ered to proceed ex-parte against the defendant including the defendant No.1. In view of the above, the last order allowing to file written statement, do here by rectified. The case will proceed ex-parte against the defendants. (cid:29) But the said order was never challenged by the petitioner in any forum a nd as a result it reached to its finality. However, it appeared from the record that on 06.02.2008 a petition not affirmed by any affidavit or nor verified prop erly was filed in the Court of the Munsiff No.1, Dibrugarh praying for vacating the order of proceeding ex parte and allow the petitioner and other defendants t o participate in the hearing. By the order dated 13.05.2008 the said prayer was rejected. While reject ing such prayer it has been held that by the order dated 08.06.2004 the defendan ts were debarred from filing the written statement since they failed to file the same within the permitted time. However, they were allowed to cross-examine the PWs if so desired. From the order dated 07.12.2004 it appears that the defendan ts were absent without any step and as such it was again ordered that the suit w ould proceed ex parte against them perhaps debarring the defendants from cross-e xamining the PWs. Thereafter, the defendants filed one petition dated 06.02.2008 praying for setting aside the order of proceeding ex parte and the order dated 29.11.2006. But the Munsiff No.1, Dibrugarh was not persuaded by such reasons as assigned an d as consequence thereof the petition was rejected. After rejection of that peti tion, the present petition has been filed challenging all the orders as referred . Mr. Saikia, learned counsel for the petitioner submitted that the orders dated 0 7.12.2004 and 13.12.2007 are absolutely without any jurisdiction inasmuch as tha t before completion of the statutory period, the said order dated 07.12.2004 was passed by the Court. Similarly, the order dated 13.12.2007 was absolutely unsus tainable, in view of the matter that the petitioner as the defendant had right t o respond to the pleadings as incorporated by way of amendment. But on denying t he trial Court had failed to exercise the jurisdiction that was vested in it. Mr. Saikia, learned counsel for the petitioner further submitted that the impugn ed order dated 13.05.2008 also consequentially cannot be allowed to stay in the records and the said order is also required to be set aside for substantive ends of justice. Mr. Saikia, learned counsel pointed out that no PW has been examine d as yet. On the other hand, Ms. Hazarika, learned counsel for the respondent submitted th at the defendant, the petitioner herein, had all the time approached the Court i n a lackadaisical manner, without diligence and now the petitioner in the maze a nd to come out of that he has filed this petition under Article 227 of the Const itution of India knowing fully well that the supervisory jurisdiction of this Co urt is extremely limited. From the conspectus of fact as laid in the petition it would emerge, Ms. Hazarik a, learned counsel for the respondent continued to submit that the orders dated 07.12.2004 and 13.12.2007 have by efflux of time reached their finality without having been assailed in any judicial forum. Ms. Hazarika, learned counsel furthe r stated that the order dated 13.05.2008 is the reflection of the previous order s dated 07.12.2004 and 13.12.2007 etc. As such, the said order cannot be faulted with if the said orders dated 07.12.2004 and 13.12.2007 cannot be disturbed. While considering the submission of the learned counsel appearing for the partie s, this Court finds that both the orders dated 07.12.2004 and 13.12.2007 reached their finality. As regards the submission of Mr. Saikia, learned counsel for the petitioner that the order of proceeding ex parte was passed even before the expiry of 90 days, the time limit is not 90 days as per Order VIII Rule 1 but the time limit is for 30 days. The time limit can be extended to 90 days. The answer lies in the very structure of the provisions unless there is a proper prayer even after 30 days, the Civil Court dealing with a suit may debar the defendant from filing the wri tten statement. The extension of time before any Civil Court is not automatic. In view of this matter, this Court is not inclined to interfere with the orders dated 07.12.2004 and 13.12.2007. Without examining the order dated 13.05.2008, t his Court observes with annoyance that for non-examination of the PWs an order h as been passed for proceeding ex parte against the defendant. It is not only unw arranted but also quizzically amazing. No Civil Court can be permitted to indulg e in such orders inasmuch as whether one witness would be cross-examined or not, it always remains the prerogative of the opposite party. The assessment of such non-examination can only be made by the Court after the argument is complete. In this view of the matter, the said observation as available in the order dated 13.12.2007 is struck down. As corollary to this, the Court of Munsiff No.1, Dib rugarh is directed to allow the petitioner to participate in the argument and if by this time the examination of PWs is not complete, the petitioner be allowed to cross-examine the PWs. Thereafter the trial court would deliver the judgment and decree on evaluation of the evidence as placed. With this observation, this petition stands disposed of. LCRs be sent down forthwith. The interim order of staying the proceeding stands vacated. Both the parties are directed to appear before the trial Court on 19.02.2013. It is made clear that there shall be no further notice from the trial Court for appearance.