High Court · 2012

Heard Mr. G.N. Sahewalla, learned Senior counsel for the petitioner. Als o heard Mr. P.J. Saikia, learned counsel for the opposite party. This is an application under Article 227 of the Constitution of India ch allenging the order dated 20-01-2012 passed by the learned Civil Judge, Dibrugar h in Title Suit No. 32 of 2011 rejecting the petition filed by the petitioner f or grant of time to file written statement. Opposite party had filed a Title Suit, registered as Title Suit No. 32 of 2011 in the Court of Civil Judge, Dibrugarh, seeking, amongst others, declarations th at he is a permanent employee of the defendant ; that notice cum letter of ter mination dated 23-08-2012 is not tenable in the eye of law and therefore, it is void and inoperative; that the defendant has no authority to issue notice /l etter of termination of the plaintiff as Medical Superintendent without giving any opportunity of being heard and for an injunction restraining the defendant from appointing any doctor or physician or person as Medical Superintendent of the defendant in place of the plaintiff till disposal of the suit. An application under order 39 Rule 1 and 2 read with Section 151 of the CPC was also filed by the plaintiff. There was a caveat on behalf of the petitioner and a copy of the Misc. C ase along with a copy of the plaint was served upon the counsel for the Caveato r for the purpose of hearing of the injunction matter. The injunction matter wa s heard on 23-09-2011. Prayer for injunction was rejected and thereafter, an ap peal was preferred before the Court of learned District Judge, Dibrugarh and the same was registered as Misc. Appeal No 5 of 2011. On 20-01-2012, a petition was filed by the defendant stating that while making enquiry in connection with the aforesaid Misc Appeal No. 5 of 2011, the petiti oner came to know on 03-01-2011, about the suit being posted for written stateme nt on 20-01-2012. It was pleaded in the said petition that no summons was served upon on the petitioner intimating about the date fixed for filing written statement. The learned Trial Court, by the impugned order dated 20-01-2012, rejected th e petition holding that on the facts of the case, it cannot be said that the d efendant came to know about the date fixed for written statement only on 03-01- 2012, while making enquiry in connection with Misc. Appeal No. 5 of 2011 and acc ordingly, ordered that court will proceed as per law as the defendant had not f iled any written statement within the period of 90 days. Mr. G.N. Sahewalla, learned senior counsel for the petitioner submits th ere is an order dated 22-09-2011 directing to issue summons to the defendant fi xing 11-11-2011 and that there is no material on record to show that summons was issued to the defendant. The learned trial court, as it appears, on 11-11-2011, without passing any order with regard to service of summons, fixed the case on 20-01-2012 for filing of the written statement. Mr. Sahewalla submits that it is correct that the counsel for the petit ioner had appeared and contested the Misc.Case. He has strenuously argued that i t is not a case where the petitioner can be said to be deliberately not filing t he written statement within time, but it is a case where the written statement could not be filed because of the confusion generated by the order dated 22-09- 2011. He has contended that immediately after the petitioner came to learn about the case being so fixed for written statement, he filed an application praying for time for the same and therefore, in the given circumstances of the case, t his court may pass an order permitting the petitioner to file the written stat ement within a specific period. Mr. P.J. Saikia, learned counsel for the opposite party submits that the re cannot be any justification for the petitioner to take a plea that counsel w as in no way connected with the Title Suit and the proceeding thereon, inasmu ch, in the Misc. Case, which is an offshoot of the Title Suit, the counsel had appeared and contested the proceedings. In this view of the matter, it is a plo y taken by the defendant to delay the proceeding, he submits. He has also submi tted that in case this court is inclined to allow this petition permitting defen dant to file a written statement, cost should be imposed upon the defendant. The rival contentions have been duly considered. I have also perused the materia ls on record. It is true that the counsel for the petitioner had appeared and contested the ca se for grant of injunction and in normal course, it would have been reasonable t o accept that the counsel must also take steps in the main suit. However, this C ourt cannot also ignore the fact that the court had directed for issuance of sum mons on the defendant. Apparently, summons was not issued. In the aforesaid sce nario, it is difficult to reject the contention of Mr. Sahawalla about the conf usion that had been generated by the aforesaid order dated 22-09-2011. It is als o noticed that on 11-11-2011, nothing has been recorded with regard to service o f summons upon the defendant. The presence or absence of the defendant was also not recorded in the said order dated 11-11-2011 and yet, 20-01-2012 was fixed for written statement. In view of the aforesaid factual matrix, this court is of the opinion that ends of justice will be sub-served if one opportunity is granted to the defendant to file written statement. Accordingly, the order dated 20-01-2012 is set aside. The parties will a ppear before the learned Trial Court on 11-06-2012. On or before 11-06-2012, if no written statement is filed, the learned Trial Court will proceed with the c ase in accordance with law. Before parting with the record, it is considered appropriate to reject t he contention of Mr. P.J. Saikia that cost should be imposed in the instant case . This Court is unable to be persuaded that the case demonstrates wilful default and is of the opinion that the present scenario has emerged because of some c onfusion as indicated hereinabove. The Civil Revision Petition shall stand disposed as indicated above.