Debasish Chakraborty vs Cygnus Developers India Private ...
2023 Latest Caselaw 4965 Cal

11.08.2023

Item No.10 CP C.O. 2058 of 2022 Debasish Chakraborty Vs.

Cygnus Developers India Private Limtied

Mr. Probal Kr. Mukherjee, Sr. Advocate Ms. Shebatee Datta ...for the petitioner.

Mr. Dwaipyan Basu Mallick Mr. Subhankar Chakraborty Mr. Saptarshi Bhattacharjee Ms. Ruchira Manna Ms. Sweta Chakraborty

....for the opposite party.

The revisional application arises out of an

order dated June 1, 2022, passed by the learned

Civil Judge (Senior Division), 9th Court, Alipore, in

Misc. Case No. 2481 of 2014. The Misc. Case arose

out of Title Suit No. 1756 of 2008. The same was an

application under Order 9 Rule 9 of the Code of Civil

Procedure.

The learned court below allowed the

application under Order 9 Rule 9 filed by the

opposite party/plaintiff. The learned court observed

that the Hon'ble Apex Court had laid down the

principles governing restoration of suits etc. It was

held that a hypertechnical approach should be

avoided in order to advance the cause of justice. A

party should not be deprived from arguing a case on

merits. In cases of like nature, opportunity should be

given to the plaintiff to contest the suit by allowing

an application for restoration, upon putting the

plaintiff to terms. Accordingly, the plaintiff's

application for restoration of the suit was allowed

upon imposition of cost of Rs.10,000/-.

The learned court held that the evidence would

show that there was no intentional negligence on the

part of the plaintiff/opposite party, which had

resulted in the dismissal of the suit.

Aggrieved, the defendant has approached this

court by filing a revisional application on the

following grounds:

a) There was a delay of 11 days in filing the

application under Order 9 Rule 9 of the

Code. Such delay was not taken into

account. No application for condonation of

the delay had been filed.

b) The learned court below mechanically

allowed the application for restoration

without weighing the evidence.

c) The reasons supplied by the court could not

be entirely based on decisions of the Hon'ble

Apex Court, unless the facts of the case

were similar to those decided by the Hon'ble

Apex Court.

Mr. Basu Mallick, learned advocate appearing

on behalf of the opposite party/plaintiff takes the

court through the pleadings and submits that

paragraphs 11 to 14 of the Examination-in-Chief on

Affidavit, filed on behalf of the opposite party by one

Ranjan Das, would indicate that the plaintiff was

prevented by sufficient cause from attending the

court when the suit was dismissed for default.

It has been stated that on November 25, 2013,

i.e., the day when the evidence of PW-1 was fixed, an

application was filed by the plaintiff seeking

adjournment. The clerk of the learned advocate

engaged, did not file the adjournment application

within proper time. Hence, the court rejected the

prayer for adjournment and asked the plaintiff to

show cause. On December 6, 2013 the show cause

was filed along with an adjournment application as it

was difficult for the opposite party to adduce

evidence on the said date. The learned court accepted

such prayer and fixed the suit for peremptory

hearing on December 20, 2013, as a last chance. In

spite of best efforts on the part of the opposite party

to be present in court, the witness was not available

and hence the suit was dismissed for non-

prosecution.

Reference has been made to a decision of the

Hon'ble Apex Court in the matter of Raj Kishore

Pandey vs. State of Uttar Pradesh & ors, reported in

(2009) 2 SCC 692. Paragraph 8 being relevant is

quoted below:

"8.In our opinion, whether the applicant has made out sufficient cause or not, in the application filed, the Court is required to look at all the facts pleaded in the application. No doubt, the consideration of the existence of sufficient cause is the discretionary power with the Court, but such discretion has to be exercised on sound principles and not on mere technicalities. The approach of the Court in such matters should be to advance the cause of justice and not the cause of technicalities. A case, as far as possible, should be decided on merits and the party should not be deprived to get the case examined on the merits."

This court finds that the opposite party is a

company. The company was represented by its

authorized representative. The authorized

representative may not have been prompt or may not

have attended the court or communicated with the

learned advocate with regard to the progress of the

suit. Subsequently, the authorized representative

changed and Mr. Partha Sarathi Ghosh was replaced

by one Mr. Ranjan Das.

Thus, there may have been some

miscommunication and failure on the part of the

company which was represented by its employees.

However, the learned court below, in my opinion,

rightly exercised discretion in order to arrive at a

finding that the conduct of the plaintiff did not reflect

sheer negligence or laches on the part of the opposite

party. The prayer for adjournment was made as per

procedure, which the clerk may not have been able to

file at the right time. The show cause was also

answered, but as the witness was not available, the

suit was dismissed. The grounds stated in

paragraphs 11 to 14 of the examination-in-chief are

satisfactory.

The cross examination which has been pointed

out by Mr. Mukherjee, indicates that Ranjan Das was

not apprised of the grounds for restoration or the

reason for dismissal of the suit.

As has already been stated earlier that the

authorized signatory of the company and/or the

representative of the company who was adducing

evidence on behalf of the company may not have

been well aware of the situation, but for such

inability the litigant which is a company, should not

suffer. This court is of the view that the suit should

be heard on merits. Upto the stage of filing of

pleadings, steps had been taken. There was no

laches or negligence. At the stage of evidence, the

opposite party failed to take steps. As a result of

which, they suffered dismissal of the suit.

The decision of the Hon'ble Apex Court in the

matter of Parimal vs. Veena Alias Bharti, reported in

(2011) 3 SCC 545, is distinguishable on facts. In the

worst case scenario, the representative of the

company could be said to have acted not with the

level of diligence he should have displayed, but this

is not such a case where the plaintiff's suit was

dismissed on the ground of lack of bona fide.

Paragraph 16 of the said judgment clearly indicates

that the Hon'ble Apex Court was alive to the

proposition that sufficient cause would be such

cause for which the party could not be blamed for the

absence. Sufficient cause is a question which the

court has to determine by exercising its discretion in

the varied and special circumstances in the case at

hand. There cannot be a straitjacket formula. Thus,

in the facts of this case, it appears that the

representative of the company or the witness on

behalf of the company may have failed to take

prompt steps on the relevant dates, but that does not

indicate lack of bona fide on the part of the company,

which is the litigant.

In the Misc. Case too, the representative failed

to take adequate steps at a certain point of time. The

company and its stake in the suit, go beyond the

conduct of its employees. The company is a juristic

person.

Moreover, it is also settled law that delay can

also be condoned without a formal application and,

in this case, there was a delay of 11 days. Thus, the

court does not find any necessity to interfere with the

order impugned as the learned court below has

exercised its discretion on the basis of the settled law

and also on the basis of the facts which emerged

from the application and the evidence. A

hypertechnical approach in this case would preclude

a fair trial, which the plaintiff deserves. The court

has also imposed cost of Rs.10,000/- upon the

plaintiff.

However, in my opinion, the suffering caused

to the defendant for having to contest a restoration

application for nine years, should be further

compensated. A further cost of Rs.5000/- is imposed

upon the opposite party to be paid to the defendant

in the suit. The total cost of Rs.15000/- will be paid

within two weeks from date. The learned court below,

upon being satisfied that the cost, as directed

hereinabove, is paid, shall continue with the suit.

The suit shall proceed in accordance with law.

Needless to mention, that the suit shall be

disposed of within a year from the date of

communication of this order.

The revisional application is accordingly

disposed of.

Parties are to act on the server copy of this

order.

(Shampa Sarkar, J.)