High Court
Case Details
WP(C) 3551/2004 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA
Legal Reasoning
Heard Mr. S.P. Roy, learned counsel for the petitioner. Also heard Mr. B . Sharma, learned counsel appearing for the opposite parties. This review application is directed against the order dated 07.05.2013, by which the Writ Petition being WP(C) No.351/2004 has been disposed of (allowed ) awarding a cost of ‘ 2000/- to be borne by the petitioners. The matter pertain s to the proceedings in T.S. No.08/2001 pending in the Court of the learned Civi l Judge (Sr. Divn) No.3, Guwahati. By the impugned orders, ex-parte hearing was ordered upon failure of the defendants/writ petitioners to file written statemen t for which time was allowed. By the order of the under review i.e. 07.05.2013, the impugned orders providing for ex-parte hearing of the suit have been set asi de and the defendants/writ petitioners have been given a last chance to file the ir written statement on or before 31.05.2013. By the said order, it has also bee n provided that upon filing of the written statement, the learned trial Court sh ould proceed with the matter in accordance with law. It is submitted that pursuant to the said order under review, the defend ants/writ petitioners who are the opposite parties in this review petition have also filed their written statement and now the suit is proceeding further. Mr. S.P. Roy, learned counsel for the review petitioners who are the pla intiffs have submitted that the order under review having been passed in absence of the counsel for the plaintiffs/respondents, the same is liable to be set as ide. In this connection he has referred to the cause list for the relevant dates in which the names of the learned counsel representing the plaintiffs/responden ts were not shown. He submits that had an opportunity been given, the engaged co unsel could have pointed out that there was no infirmity in the impugned orders. In this connection Mr. Roy, learned counsel for the review petitioners has refe rred to the statements made in the writ petition and also the impugned orders so as to show that the plea of the defendants/petitioners that notice was not prop erly served was incorrect. Irrespective of the fact that the impugned order dated 07.05.2013 was pa ssed in absence of the learned counsel representing the plaintiffs/review petiti oners and independent of the said order, I have considered the submissions made by Mr. Roy, learned counsel representing the plaintiffs/review petitioners. I ha ve also considered once again the entire materials on record including the decis ion on which Mr. Roy has placed reliance in support of his argument. The decisio ns are as reported in AIR 1964 SC 993 (Arjun Singh -vs- Mohindra Kumar & Ors), A IR 1955 SC 425 (Sangram Singh -vs- Election Tribunal Kotah & another) and 1977 A LR (Digendra Kumar Das -vs- Rosie H. Rikhimi). In Arjun Singh (Supra), referring to the provisions of Order 9 Rule 7 CP C, the Apex Court emphasized the need for showing good and sufficient cause for setting aside an ex-parte order. In Sangram Singh (Supra), also the Apex Court d ealt with the power and jurisdiction of the Court to set aside ex-parte hearing and the manner in which the said discretion is to be applied. In Digendra Kumar Das (Supra) in the given facts and circumstances, the Division Bench of this Cou rt had the occasion to deal with the provision of Order 9 Rule 7 CPC. Referring to the aforesaid decisions, Mr. Roy, learned counsel for the review petitioners submits that the defendants/respondents having failed to avai l all the opportunities granted to file written statement, the trial Court right ly passed the impugned orders, rejecting the prayer for setting aside the ex-par te order and thus the said orders could not have been set aside. Mr. Sharma, learned counsel appearing for the defendants/opposite partie s on the other hand submits that there has been no error apparent on the face of the record and the ingredients for review of an order being absent, there is no question of setting aside the said order on a review, exercising review jurisdi ction. I have considered the submissions made by the learned counsel for the pa rties and have also perused the entire materials on record. The only basic groun d assigned in the review petition is that the order under review being ex-parte, the same is required to be set aside. Another ground assigned for review of the order is that the order being ex-parte and the affidavit in opposition that was filed by the plaintiffs/respondents having not been considered, the order is re quired to be reviewed towards consideration of the submission of the learned cou in the affidavit nsel for the plaintiffs/respondents and the grounds urged in opposition. As pointed out above, independent of the order under review and the fact that the learned counsel for the plaintiffs/respondents was not heard, I have a gain considered the matter on the basis of the submission advanced by Mr. Roy, l earned counsel for the review petitioners and have also considered the relevant documents including the affidavit in opposition that was filed in the writ petit ion. In paragraph 3 of the writ petition, the specific averment made by the d efendants/petitioners is that the summons pertaining to the suit were not duly s erved upon the petitioners in proper manner and that the copy of the plaint was not accompanied with the summons and as such, proper steps could not be taken by the defendants/petitioners before the learned trial Court. In response to the s pecific averment in paragraph 3, the plaintiffs/review petitioners have stated i n their counter affidavit that the statements are incorrect and misleading. Refe rring to the particular order sheet, it has been stated that notice was duly ser ved along with the copy of the plaint in response to which the defendants/petiti oners had also appeared before the trial Court. In the order under review dated 07.05.2013, all relevant facts have been taken note on. It has also been noted that there is no provision for filing any revision petition against the order refusing to entertain section 151 CPC. The learned trial Court having not considered the petition filed u/s 151 CPC and in the given facts and circumstances, the defendants have been provided with anothe r opportunity to file written statement. The order has been passed keeping in mi nd the ends of justice. While doing so, cause of Rs.2000/- has also been awarded against the defendants/petitioners. Having regard to the aforesaid facts and circumstances, I see no reason to interfere with the impugned order dated 07.05.2013, passed in WP(C) No.3551/2 004. At this stage, Mr. Roy, learned counsel for the review petitioners, submits that the writ petition having been filed u/s 226/227, without converting the sa me into a petition under article 227 of the Constitution of India, the writ peti tion could not have been entertained. Suffice is to say that the writ petition b eing one under 226/227, the same was competent to deal with the orders passed by the learned trial Court by which the prayer for setting aside the order for ex- parte hearing was rejected. That apart, pursuant to the order under review, the defendants have already filed their written statement and now the suit is in pro gress. Review petition stands dismissed.