Calcutta High Court (Appellete Side)
Sumita Dutta vs The Bengal Freemasons' Trust ... on 8 August, 2022
08.08.2022
Ct No.7
Item.12
(PA)
C.O. No. 1241 of 2022
Sumita Dutta
Vs.
The Bengal Freemasons' Trust Association
Mr. Aniruddha Chatterjee,
Mr. Saptarshi Kumar Mal,
Mr. Saptarshi Datta
.... For the petitioner.
Mr. Mainak Bose,
Mr. R.L. Mitra,
Ms. Priyanka Dhar
.... For the opposite party.
Impugned order dated 9th December, 2021,
passed by learned Chief Judge, City Civil Court at
Calcutta in Misc. Case No. 2046 of 2018, dismissing
the Misc. Case filed by petitioner/award debtor
under Section 47 read with Order 21, 151 of Code of
Civil Procedure.
Admittedly, petitioner instituted the above
Misc. Case praying for a declaration that the arbitral
award dated 19th April, 2012, was a nullity,
unexecutable, and not binding upon the petitioner.
Mr. Chatterjee, appearing for the
petitioner/award debtor, upon referring Order 9 Rule
8 C.P.C. submits that the dismissal of the Misc. Case
is a product of infraction of law, available under
Order 9 Rule 8 C.P.C., as for the non-appearance of
the petitioner/award debtor on a stipulated date, the
only option left open before the court below was to
adhere to Order 9 Rule 8 C.P.C. by making dismissal
of Misc. Case without touching upon the merits of the
case.
It is further contended by Mr. Chatterjee that
dismissal of the Misc. Case upon considering merits
of the case, merely on the ground of non-appearance
of the petitioner/award debtor, is absolutely illegal, as
such dismissal is in violation of Order 9 Rule 8 C.P.C.
Mr. Chatterjee draws attention of the Court to
the 2nd paragraph of the impugned order in support
of his stand that despite knowledge of the court
below, that nobody was there to represent
petitioner/award debtor, dismissal of such Misc. Case
on merits is without sanction of law.
Taking recourse to Section 141 of C.P.C., Mr.
Chatterjee argues that the procedure prescribed in
the Code in regard to suit has to be followed so far as
other proceedings, arising out of the suit, is
concerned, and thus by not making adherence to
Order 9 Rule 8 C.P.C., there has been miscarriage of
justice.
Per contra, Mr. Mainak Bose appearing for the
opposite party/awardee submits that on the
stipulated date, fixed by the court below, the
petitioner/award debtor, even after filing hazira,
preferred to remain away for the reasons best known
to the petitioner, and further the petitioner has not
responded to the repeated calls made outside the
court room immediately before taking up the matter
for passing necessary order.
Mr. Bose further contends that since conduct of
the petitioner, as exposed to the case record was not
happy, so on the previous date, preceding to the order
impugned, there has been an order against the
petitioner/judgment debtor requiring him to file
show-cause for his non - appearance on the schedule
date.
It is, thus, submitted by Mr. Bose that for
sudden non-appearance of the petitioner/judgment
debtor/awardee, the court below already show-
caused the petitioner, which however, could not be
answered .
As regards the applicability of Order 9 Rule 8
C.P.C., Mr. Bose argues in reply that when
petitioner/award debtor filed his hazira on the
schedule date, but for the reasons best known to the
petitioner, learned advocate representing petitioner
could not be found present in the court, responding
to the calls of the court below, the provisions of Order
9 Rule 8 C.P.C. would not be attracted in such
circumstances.
Non-appearance of petitioner even after filing
hazira is purposive, simply to cause delay to the
execution of award.
More so, the court below has subscribed
independent reasons mentioning the dismissal of SLP
by Apex Court in this case after complying with the
direction passed by this Court as regards expeditious
disposal of the pending Misc. Case, and as such the
order impugned would remain uninterfered with, Mr.
Bose replies.
Fundamentally, the legality of the order
impugned is challenged on the score that order
impugned is a product of infraction of law, as
available under Order 9 Rule 8 C.P.C.
Petitioner has taken the point that the court
below ought to have dismissed the Misc. Case for
non-appearance of judgment debtor in application of
Order 9 Rule 8 C.P.C. without entering into the
merits of the case.
Order 9 Rule 8 of C.P.C. comes into play, where
the defendant appears and plaintiff does not appear,
when the suit is called for hearing, and in that case
the court shall make an order that the suit be
dismissed. Therefore, non-appearance of the plaintiff,
when the suit is called on for hearing is sine qua non
for the applicability of Order 9 Rule 8 C.P.C. in a
case, where defendant is already present upon
registering his appearance.
This is a case, wherein petitioner/judgment
awardee/debtor has already registered his
appearance upon filing hazira on the stipulated date.
The filing of hazira, however, could not be responded
to by the petitioner/judgment debtor or his legal
representative during the course of repeated calls
prior to passing the impugned order. No adjournment
was proposed on that date for petitioner/judgment
awardee for some undisclosed reasons, nobody
represented petitioner/judgment debtor before the
court below on the scheduled date even after filing
hazira. It suggests that for the reasons best known to
petitioner, he or his representative preferred to
remain away.
Therefore, it is not a case that there has been
complete infraction of law with respect to Order 9
Rule 8 C.P.C., as contended by Mr. Chatterjee.
More so, at the instance of petitioner, PW-1 was
examined, and subsequently cross-examined and
discharged finally on 6th February, 2020. Therefore,
petitioner was very much aware of the movement of
this Misc. Case even after cross-examination of PW-1
in Misc. Case.
Upon perusal of the impugned order, it appears
that the court below has considered all possible
aspects within the parameters of law, and as such the
impugned order does not call for any interference.
The revisional application stands disposed of.
Urgent certified photostat copy of this order be
given to the parties, if applied for, upon compliance
with requisite formalities.
(Subhasis Dasgupta, J.)
