Allowed

Green Valley Club v. Moilapathar Bazar, Represented by Nurul Islam and Anr.

Gauhati HC21 Nov 2019CRP/120/2015

Case brief

AI extract

What is this about?

This revision petition challenged an order dismissing an application to set aside an ex-parte decree due to limitation. The court found the counsel's failure to challenge the ex-parte order despite regular appearances constituted negligence and set aside the dismissal.

What did the court decide?

The impugned order dismissing the application under Order 9 Rule 7 CPC dated 04.03.2015 was set aside with a direction to the lower court to consider a fresh application along with a condonation of de

Green Valley Club Vs Moilapathar Bazar, Represented… — Execution and Attachment | Gauhati HC (2019)

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GAHC010011312015

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : CRP 120/2015

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1:GREEN VALLEY CLUB

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MORIGAON NAGAR, P.O. BALADMARI, P.S. and DIST- GOALPARA, ASSAM, REP. BY GAZIBAR RAHMAN, SECY., GREEN VALLEY CLUB, MORIOM NAGAR, P.O. BALADMARI, P.S. and DIST- GOALPARA, ASSAM

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VERSUS

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1:MOILAPATHAR BAZAR, REPRESENTED BY NURUL ISLAM and ANR. PRESIDENT OF MANAGING COMMITTEE, MOILAPATHAR BAZAR

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Advocate for the Petitioner : MR.N AHMED

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Advocate for the Respondent : MR.M U MAHMUDR-1and2

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BEFORE

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THE HON’BLE MR JUSTICE PRASANTA KUMAR DEKA

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For the petitioner :Mr. A R Sikdar, Advocate.

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For the respondents : Mr. MU Mahmud,

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Advocate.

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Date of hearing & date of Judgment/ Order : 21.11.2019

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JUDGMENT & ORDER (ORAL)

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Heard Mr. A R Sikdar, learned counsel for the petitioner. Also heard Mr. MU Mahmud,

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learned counsel for the respondents.

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Order dated 04.03.2015 passed by the learned court of Munsiff No. 1, Goalpara in Misc. (J) Case No. 59/2014 arising out of T.S. No. 70/2012 is put under challenge in this revision petition. T.S. No. 70/2012 was filed by the plaintiffs respondents against the defendant petitioner. The suit was dismissed for default on 26.11.2012. The same was restored vide order dated 13.3.2013. On 21.05.2013 the defendant petitioner did not take any step for which the suit proceeded ex-parte. Next date was fixed on 11.06.2013 for production of documents and issues. On 11.06.2013 next date was fixed on 16.07.2013 and thereafter the suit was fixed on 26.08.2013. Subsequent dates were fixed on 01.10.2013, 04.12.2013, 11.01.2014, 25.02.2014, 24.03.2014, 04.06.2014 and on 05.08.2014. On the said dates so fixed the conducting counsel on behalf of the defendant petitioner shown his presence by way of “Hajira” indicating even that list of witnesses was submitted earlier. On 05.08.2014 the defendant petitioner through one Gajibur Rahman filed an application under Order 9 Rule 7 of the CPC for vacating the ex-parte order passed on 21.05.2013. In the said application it was stated that the date fixed on 21.05.2013 and the fact of restoration of the suit on 13.03.2013 was beyond the knowledge of the learned counsel. It came to the knowledge on 05.08.2014 on which date the said petition under Order 9 Rule 7 of the CPC was filed. The plaintiff respondent filed his written objection raising the plea that petition is barred by law of limitation and further disputing that neither the suit was fixed on 26.05.2013 nor any order passed on 26.05.2013 as stated in the said petition under Order 9 Rule 7 of the CPC. The learned court below vide impugned order dated 04.03.2015 held that the petition was barred by limitation thereby dismissing the said application.

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Mr. Sikdar submits that the fact of limitation will not come inasmuch as it is from the date of knowledge of the defendant petitioner No. 1 who filed the application for setting aside the order when it came to the knowledge of the defendant No. 1. In support of his contention he relies on C.L. Cleetus V. South Indian Bank Ltd. and Anr . reported in AIR 2007 KERALA 301 and submits further that as there is no provision in the Limitation Act providing any specific period of limitation for an application under Order 9 Rule 7 of the CPC, such application would be covered under Article 137, the residuary article which prescribed a period of three years. It is further submitted that there was clear negligence on the part of

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the conducting counsel as he was filing his attendance all throughout even after the order of ex-parte without making an effort to set aside the order passed on 21.05.2013. For the said negligence on the part of the conducting counsel the defendant petitioner should not suffer and in support of his contention he relies on Rafiq and Another Vs. Munshilal and Another reported in (1981) 2 SCC 788 .

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Mr. Mahmud on the other hand relying on D Gopinathan Pillai Vs. State of Kerala and Another reported in (2007) 2 SCC 322 submits that the period of limitation is a mandatory provision and until and unless sufficient cause/ causes are shown the court cannot extend the said prescribed period of limitation. On a specific query to Mr. Mahmud as regard to the limitation period for filing of an application for setting aside of an ex-parte order, Mr. Mahmud submits that it varies case to case. Further relying on North Eastern Frontier Railway Vs. Kirendra Rabha reported in 2012 (2) GLT 1028 submits that the term “sufficient cause” though not defined under the Limitation Act, 1963 but it can be construed as a cause beyond control of the party seeking indulgence of extension of period of limitation. On going through the petition filed under Order 9 Rule 7 of the CPC no such cogent grounds are stated falling within the term “sufficient cause” and the learned court below rightly held that when the defendant was regularly appearing in the suit it was difficult to believe that he was unaware about the proceeding of the suit. The learned court below passed the impugned order correctly which is not required to be interfered by this court.

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I have given due consideration to the submissions of the learned counsel. In order to verify the contention that the suit was restored on 13.03.2013 without issuing notice to the other side nor fixing the next date, the LCRs of T.S. No. 70/2012 were called for. But it is found that after restoration of the suit the next date was fixed on 11.06.2013. On perusal of records it is found that vide order dated 21.05.2013 the suit proceeded ex-parte fixing 11.06.2013 for framing of issues. On perusal further it is found that starting from 26.08.2013 the conducting counsel of the defendant petitioner filed “Hajira” thereby showing his presence representing the defendant petitioner. The said practice continued till 03.07.2014 on various dates fixed by the learned court below. On 05.08.2014 a petition under Order 9 Rule 7 of the CPC was filed by the defendant petitioner through the said conducting counsel who took steps by filing “Hajira” all throughout since date of passing the ex-parte order against

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the defendant petitioner. The said conduct of the learned counsel can very well be termed to be negligent inasmuch as a duty is cast upon the counsel to go through each and every order passed by the court and to take necessary steps accordingly. Once a party engages the Advocate to conduct on his behalf the party remains confident on the Advocate that he would take necessary steps in the suit and any duty cast on the said Advocate if not performed would cause prejudice to the party. The said act of negligence can be considered while passing an order under Order 9 Rule 7 of the CPC and that too after a considerable delay. There was no delay condonation petition and the learned court below held that the petition is barred by limitation and as such Misc (J) Case No. 59/2014 was dismissed.

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Considering the grounds and keeping in view that there was apparent negligence on the part of the conducting counsel, I hereby set aside the impugned order dated 04.03.2015 with a direction to consider a fresh application to be filed by the present defendant petitioner along with delay condonation petition as an abundant caution. The parties to the suit shall appear before the learned court below on 16.12.2019 and immediately thereafter the learned court below shall decide the application to be filed afresh along with delay condonation petition. While disposing the said petition the observation made in this order shall be considered as the same are made after going through the records. Considering the date of appearance of the parties Registry to send back the LCRs at the earliest. No cost.

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JUDGE

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Comparing Assistant

Green Valley Club v. Moilapathar Bazar, Represented by Nurul Islam and Anr.

Case brief

What is this about?

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Green Valley Club v. Moilapathar Bazar, Represented by Nurul Islam and Anr.

Case brief

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