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The Code Of Civil Procedure (Amendment) Act, 1956
Article 227 in The Constitution Of India 1949
The Indian Penal Code, 1860
Section 151 in The Indian Penal Code, 1860

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Kolkata High Court (Appellete Side)
Shri Bata Krishna Mondal vs Shri Gurudas Sen & Ors on 2 December, 2009
Author: Md. Abdul Ghani

C.O. 3183 OF 2007

2.2009

SHRI BATA KRISHNA MONDAL

VS.

SHRI GURUDAS SEN & ORS.

Mr. Manjit Singh,

Mr. Aabir Mondal,

Mr. Anand Keshari,

Mr. Pawan Kr. Gupta.

... for the petitioner.

Mrs. Manjari Gupta,

Mrs. Chandreyi Alam,

Ms. Runu Mukherjee.

... for the O.Ps.

The present application under Article 227 of the Constitution of India is directed against the order no. 57 dated 22nd February, 2007, passed by learned Civil Judge (Senior Division), 3rd Court, West Midnapore in Title Suit No. 3 of 2003.

Having gone through the materials on record including the impugned order and also giving due consideration to the submission made on behalf of the parties concerned it could be said that the plaintiff by filing the instant revisional application has prayed for recalling and/or reviewing the order no. 56 dated 19.1.2007 and for setting aside the order impugned with a view to obtaining an opportunity to make submission on the application under Order 6 Rule 17 of Code of Civil Procedure. It would be manifest from the contents of the impugned order as also from some other materials available with the record it could be ascertained that learned trial Judge upon hearing the parties concerned and also applying proper judicial mind was pleased to pass the impugned order by way of rejecting plaintiff's application under Section 151 of CPC. Being aggrieved by and dissatisfied with the impugned order dated 22.2.2007, the plaintiff has come up before this Court with the prayer indicated at the very outset.

The only point for consideration and determination is whether the impugned order needs any interference by this Court or not. Learned counsel appearing for the plaintiff-petitioner while making submission drew this Court's attention to the materials on record including the averments of the impugned order as also an affidavit sworn by advocate Aabir Mondal (advocate for the plaintiff in the Court below) and strongly contended that the order impugned suffers from not only impropriety and absurdity but also the same is devoid of judicious decision inasmuch as learned Court below while passing the impugned order deprived the petitioner-plaintiff of an opportunity of advancing an argument in support of his application under Order 6 Rule 17 of Civil Procedure Code and thus caused miscarriage of justice. Further in support of his argument he drew this Court's attention to the averments of the few paragraphs of the affidavit indicated above as also the order dated 18.12.2006 and emphatically argued that the said order dated 18.12.2007 was supposed to have been prepared by the second bench clerk Sri Ranjan Roy, attached to the Court below in absence of bench clerk no. 1 Golak Hansda and instead the same was prepared by bench clerk no. 1 on any subsequent date as a result the order was not recorded in a proper manner as was brought to the notice of the learned lawyer for the plaintiff. According to the submission made on behalf of the petitioner, on 18.12.2006 the defendants application under Order 39 Rule 4 read with Section 151 CPC was heard on merit in presence of both sides and the application for amendment under Order 6 Rule 17 CPC filed on behalf of the plaintiff was fixed for hearing on any subsequent day. On the other hand, learned lawyer appearing for the O.Ps. referring to the contents of the impugned order as well as some other important materials on record emphatically urged that the instant revisional application is not maintainable as because there is no mistake apparent on the face of the record. He further submitted that the contents of the affidavit referred to above being contrary to the actual circumstances of the case as also the contents of the impugned order as well as the order dated 18.12.2006 the same cannot be relied upon. In fine, learned lawyer appearing for the O.Ps. submitted that the learned Court below while passing the impugned order committed no mistake or absurdity and as such order impugned needs no interference by this Court and accordingly the revisional application under Article 227 of the Constitution of India deserves to be dismissed with cost.

On scrutiny of the record it could be detected that the plaintiff by filing the T.S. No. 3 of 2003 sought for decree for partition in respect of his 1/10th share in the suit property. The defendants upon receiving Court's summons entered appearance and filed a joint written statement and thus prayed for dismissal of the suit. In this context, it may be pertinent to note down that the plaintiff by filing the suit obtained an order of status quo and the defendant after filing the written statement took an attempt for vacating the status quo order by filing an application under Order 39 Rule 34 read with Section 151 of CPC. The said application was resisted by the plaintiff by filing a written objection. Thereafter, the plaintiff by filing an application under Order 6 Rule 17 CPC sought for certain amendment of the plaint. Thereafter, on 18.12.2006 the application under Order 39 Rule 4 of CPC as also the application under Order 6 Rule 17 CPC were fixed for hearing. It appears from the record that on 18.12.2006 plaintiff sought for an adjournment for hearing of the application under Order 6 Rule 17 CPC and as such the defendants' application under Order 39 Rule 4 CPC was supposed to have been heard on merit in presence of both sides. But unfortunately learned Court below instead of passing any order on the application under Order 39 Rule 4 CPC was pleased to pass an order of rejection of the application under Order 6 Rule 17 CPC filed by the plaintiff. On my careful scrutiny it could be ascertained that on 18.12.2006 plaintiff filed written objection against defendants' application under Order 39 Rule 4 CPC dated 18.10.2006 upon service of copy thereto and on the same day defendant filed a written objection against the amendment application. Further it is well indicated in the order dated 18.8.2006 that learned Court below heard both sides over the amendment application without passing any order of adjournment in regard to the said application. From the contents of the impugned order it would be transparent that plaintiff by filing an application under Section 151 of CPC prayed for recalling the orders dated 18.12.2006 and 19.1.2007 seeking an opportunity to argue on the amendment application. But the learned Court below rejected the amendment application. In my considered view, since the plaintiff by swearing an affidavit and also by filing an application under Section 151 CPC tried to impress upon the Court below for obtaining an opportunity to make submission over the application under Order 6 Rule 17 CPC the said submission ought to have been considered and allowed for the sake of natural justice specially with a view to affording an opportunity to the plaintiff of being heard on merit about the application under Order 6 Rule 17 CPC. Therefore, having heard the learned counsels for the parties concerned and also giving due regard to the facts and circumstances of the case as also the materials available with the record I am persuaded to understand and believe that the order impugned is not based on the justification and judicious conscience as also equitable principles and accordingly the same needs interference by this Court. Resultantly, the application under Article 227 of the Constitution of India succeeds and the order impugned thus stands set aside. The Court below is directed to hear out the plaintiff's application under Order 6 Rule 17 CPC afresh by affording an opportunity to the parties concerned for making their respective submissions with a view to enabling the Court to dispose of the said application on merit according to law as expeditiously as possible preferably within a period of three months from the date of communication of this order.

However, I make no order as to costs.

Urgent xerox certified copy of this order be given to the parties expeditiously, if applied for.

(Md. Abdul Ghani, J.)