Allowed

Union Bank Of India v. Abdul Haque And 2 Ors.

Tripura HC12 Jun 2017FAO/3/2013

Case brief

AI extract

What is this about?

The High Court of Tripura allowed an appeal against orders dismissing a suit for default. The Court set aside the orders, restored the case, and granted the plaintiff one final opportunity to cross-examine witnesses subject to payment of costs and strict adherence to timelines.

What did the court decide?

Impugned orders set aside; suit M.S. 33 of 2007 restored; plaintiff granted one chance to cross-examine witnesses upon payment of Rs.3,000/- within 45 days.

Union Bank Of India Vs Abdul Haque And 2 Ors. — Execution and Attachment | Tripura HC (2017)

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THE HIGH COURT OF TRIPURA AGARTALA FAO 03 of 2013

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Union Bank of India, Agartala Branch, located at 4, Hari Ganga Basak Road, Agartala, West Tripura, represented by its Chief Manager.

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………… Appellant

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Vs –

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Abdul Haque S/o Abdul Barek, resident of Sonapur, P.S. Sonamura, District-West Tripura.

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The Chairman, Tripura Gramin Bank, Head Office at Abhoynagar, (Near Buddha Mandir) P.S. West Agartala, District-West Tripura.

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The Branch Manager Tripura Gramin Bank, Sonamura Branch, P.S. Sonamura, District-West Tripura.

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………..Respondent-Defendants.

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BEFORE

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THE HON’BLE MR. JUSTICE S. TALAPATRA

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For the Appellant : Mr. A Nandi, Advocate For the respondent No.1 : Mr. D Bhattacharji, Advocate For the respondent Nos.2&3 : None. Date of hearing and delivery of order : 12.06.2017. Whether fit for reporting : No.

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JUDGMENT AND ORDER (ORAL)

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Heard Mr. A Nandi, learned counsel appearing for the

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appellant as well as Mr. D Bhattacharji, learned counsel appearing for

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FAO 03 of 2013

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Page 1 of 4

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the respondent No.1. Despite due notice from this Court, the remaining respondents preferred not to appear at their peril.

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2. This is an appeal under Order XLIII Rule 1(c) read with Section 104 of the CPC from the order dated 19.11.2012 passed by the Civil Judge, Sr. Division, (Court No.1), West Tripura, Agartala in Civil Misc. (Restoration) 163 of 2012. By the said order dated 19.11.2012 the Civil Judge has observed inter alia, as under:

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“On perusal of the said order it appears that from 24.05.11 so many adjournments were granted at the stage of cross-examination of the plaintiff’s witness by the defendant side. As many as 10 dates were fixed for cross-examination of the plaintiff’s wiriness and, therefore, vide order dated 04.06.12 the said suit was dismissed for default.

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Situated thus, the contents of the petition filed by the petitioner under Order 9 Rule 4 of the CPC seeking set aside the Order dated 04.06.12 is not satisfactory and therefore, the said petition stands rejected.”

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The appellant herein filed a petition under Order IX Rule 4 of the CPC for restoration of the case being M.S. 33 of 2007 which was dismissed by the said order dated 04.06.2012.

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3. It can be gathered from the records that the day 19.11.2012, was fixed for examination and cross-examination of the plaintiff’s witnesses. The examination in chief was submitted much earlier but pressed the transaction of business during the closing of the financial year, the plaintiff despite his serious attempt failed to remain present for cross-examination. According to Mr. Nandi, the plaintiff submitted a detailed petition showing the causes for non-appearance on 04.06.2012. Despite that the said order dated 04.06.2012 for non-prosecution was passed. By the order dated 19.11.2012, the Civil Judge, Sr. Div. (Court No.1) has declined to interfere and to restore the case. Hence, the FAO 03 of 2013 Page 2 of 4

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plaintiff filed this appeal challenging both the orders dated 04.06.2012 and 19.11.2012.

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4. Similar grounds have been asserted in this appeal.

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5. Mr. Nandi, learned counsel for the appellant has particularly stated that the appellant being the Chief Manager of the plaintiff Bank was not in a position on 04.06.2012 to come to the Court and he was prevented by sufficient cause but that cause was not properly appreciated by the trial court while passing the impugned orders.

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6. Mr. D Bhattacharjee, learned counsel for the respondent No.1 has raised serious objection stating that that was not the solitary occasion but previously also the witnesses of the plaintiff failed to come to the court defying the mandate of law as introduced by under Order XVII Rule 1 of the CPC.

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7. This Court however finds that a hyper technical approach, having regard to the causes so assigned in the petition for restoration, should not have been taken by the trial court. The trial court should have exercised its discretion having understood the provisions of Order XVII Rule 1 of the CPC liberally in the circumstance, but there is no apparent infirmity in the order.

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8. Having observed thus, this Court is of the opinion that the plaintiff will be given one further solitary chance to adduce witnesses for cross-examination etc., if any, subject to payment of Rs.3,000/- to the defendant No.1 within 45 days from today.

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9. The impugned orders are set aside. M.S. 33 of 2007 is restored to its file. The case is posted for cross-examination of the plaintiff and its witnesses on 12.08.2017.

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FAO 03 of 2013

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Page 3 of 4

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10. Mr. Nandi, learned counsel for the appellant has submitted that the Chief Manager who filed the examination-in-chief has been transferred out of the State and the new Chief Manager has resumed his duties. The plaintiff would be entitled to file a fresh examination in chief without changing any averments therein at all but under the signature of the new Chief Manager as that Chief Manager would be crossexamined by the defendants.

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11. Be that as it may, such examination in Chief also shall be filed before the next date but the copy shall be supplied to the learned counsel for the defendants 10 days prior to the next date.

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12. On the next date, the Civil Judge, Sr. Div. shall complete the cross-examination of the plaintiff and the plaintiff’s witnesses positively. If the plaintiff, through the Chief Manager, fails to get himself crossexamined, the plaintiff will not get any further opportunity. In that case, the Civil Judge shall dismiss the case for non-prosecution and close the proceedings accordingly. In terms of the above, this appeal stands allowed.

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13. A copy of this order be furnished to the learned counsel for the parties. Since this Court has posted a date in the trial court, no fresh notice shall be issued to the appellant and the respondent No.1. Having received the records from this Court, the Civil Judge, Sr. Div., (Court No.1) West Tripura, Agartala shall notify the next date through the counsel for the other defendants.

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JUDGE

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FAO 03 of 2013

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Page 4 of 4

Union Bank Of India v. Abdul Haque And 2 Ors.

Case brief

What is this about?

What did the court decide?

Union Bank Of India v. Abdul Haque And 2 Ors.

Case brief

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