Calcutta High Court (Appellete Side)
Smt. Keya De vs Sri Jyotirmoy Mitra And Others on 5 June, 2023
June 5, 2023
Sl. No.16
Court No.19
s.biswas
CO 1185 of 2023
Smt. Keya De
vs.
Sri Jyotirmoy Mitra and others
Ms. Riya Banerjee
... for the petitioner
The petitioner is aggrieved by the judgment and
order passed in Misc. Appeal No.32 of 2019, by the
learned Additional District Judge, Re-designated
Court, Paschim Medinipur.
The Misc appeal was filed by the opposite
parties against the order dated February 28, 2019,
passed by the learned Civil Judge (Senior Division),
1st Court, Paschim Medinipur in Judicial Misc. Case
No.09 of 2016 arising out of Title Suit No.456 of
2006 rejecting an application under Order 9 Rule 13
of the Code of Civil Procedure.
The said title suit was filed for a declaration
that the deed of gift was null and void, for
demarcation of boundary and delivery of possession.
The said suit was decreed ex parte in view of the
failure of the learned advocate for the defendants to
enter appearance at the time of hearing.
The defendants filed an application under Order
IX Rule 13 of the Code of Civil Procedure along with
the application under Section 5 of the Limitation Act
and prayed for setting aside of the ex parte decree,
upon condonation of delay. By an order dated
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February 28, 2019, the application for setting aside
the ex parte decree along with the application for
condonation of delay, were rejected.
Aggrieved, the defendants filed Misc. Appeal
No.32 of 2019. The Misc. Appeal was allowed and
the delay in filing the application was condoned. The
ex parte decree dated March 5, 2014 passed in Title
Suit No.456 of 2006, was set aside. Title Suit
No.456 of 2006 was restored to its original file and
number and the learned trial court was directed to
dispose of the suit as early as possible.
Aggrieved by the order passed in Misc. Appeal,
this revisional application has been filed.
Learned advocate for the petitioner/plaintiff
submits that the defendants had intentionally failed
to appear in the suit in order to delay the
proceedings and frustrate the legitimate claim of the
petitioner as the daughter of the erstwhile owner of
the property in question.
According to the learned advocate, the
defendants had stayed away from appearing in the
suit, intentionally. Even the application for
injunction was disposed of ex parte. It is further
submitted that the learned advocate who appeard on
behalf of the defendants was also not cooperating
and refused to accept notices with regard to the
proceedings.
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Having gone through the records and the
judgment which is impugned before the Court, it
appears that the learned lower appellate court
considered the day to day development in the suit
and the orders passed therein. The timeline has
been elaborately narrated in the judgment
impugned.
The defendants contested the suit by filing a
written statement on December 3, 2007. Thereafter,
issues were framed on February 25, 2008 and the
suit was fixed for peremptory hearing on July 10,
2008. The plaintiff filed an application for
amendment of the plaint and the amendment
petition was allowed on contest, on August 27, 2009.
The plaintiff filed the amended plaint. The additional
written statement was filed by the defendants on
April 26, 2010. On June 4, 2010, the suit was fixed
for framing additional issues. Thereafter, the plaintiff
filed an application for injunction. No additional
issues were framed and the suit was fixed for ex
parte hearing.
The learned trial court recorded in the order
dated February 28, 2019 that the learned advocate
for the defendants refused to accept a copy of the
application for injunction. The order also records
that as many as 11 or 12 days were fixed for hearing
of the suit and thereafter, the suit was decreed on
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March 5, 2014. As per the order-sheets and the
facts which are apparent to the Court, it appears
that the defendants contested the suit for five years
until the time when they had stopped appearing
before the Court through their learned advocate.
From the evidence of the defendants, it appears that
the defendants had entrusted the learned advocate
to do the needful and the learned advocate was
contacted by the defendants regularly. However,
learned trial judge rejected the application on the
ground that the defendants were negligent and not
the learned advocate. The learned court assumed
that a learned advocate, who was entrusted with a
case, would not normally to be negligent.
Learned lower appellate court, however,
considered the issues on the basis of the facts and
the laws applicable. Several decisions were relied
upon and the learned lower appellate court found
that the duty of a party who had engaged a learned
advocate to conduct the case was to pay the fees,
and give necessary factual instructions. A litigant
could not be blamed for failure of the learned
Advocate to conduct the case properly. The litigant
could afford to have full faith and trust on the
learned advocate. Learned lower appellate court
found that although the learned advocate who was
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conducting the case had filed hazira, none appeared
when the suit was called on. No steps were taken.
It was the solemn duty of the learned advocate
to present the case of his client and there was
nothing on record for the trial court to presume that
the learned advocate was not at fault and assume
that the defendants were responsible for the suit
having proceeded ex parte, in their absence.
Once the learned lower appellate court had
come to the conclusion on the basis of the records,
that the defendants had discharged their obligation
as dutiful litigants and as there is nothing on record
to show that the defendants were at fault, this Court
is of the view that the application under Article 227
of the Constitution of India should not be
entertained, in order to upset the factual findings by
a sub-ordinate court. The view taken by the lower
appellate court is a plausible view. The court held
that due to the laches of the learned advocate, the
litigant cannot suffer an ex parte decree.
In Babhutmal v. Laxmibai, a Bench
consisting of three Judges have explained the scope
and power of the High Court under Article 227 in the
following manner:-
"The power of superintendence of High Court
under Art. 227 being extraordinary is to be
exercised most sparingly and only in
appropriate cases. This power, as in the case
of certiorari jurisdiction, cannot be invoked to
correct an error of fact which only a superior
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Court can do in exercise of its statutory power
as a Court of appeal. The High Court cannot in
guise of exercising its jurisdiction under Art.
227 convert itself into a Court of appeal when
the legislature has not conferred a right of
appeal and made the decision of the
subordinate Court or tribunal final on facts.
The High Court cannot, while exercising
jurisdiction under Art. 227, interfere with
findings of fact recorded by the subordinate
Court or tribunal. It's function is limited to
seeing that the subordinate Court or tribunal
functions within the limits of its authority. It
cannot correct mere errors of fact by
examining the evidence and re-appreciating it."
In Maneck Custodji v. Sarafazali, their
Lordships have explained the interference of the
High Court under Article 227 in the following
manner:-
"Held that the respondent had clearly a legal
remedy available to him by way of an appeal
against the decree of the City Civil Court and
that remedy was not only adequate but was
more comprehensive than the one under Art.
227 of the Constitution. It is true that, despite
the existence of an alternative, legal remedy,
the High Court may interfere in favour of an
applicant under Article 227 of the
Constitution, but this was certainly not one of
such extraordinary cases. It was not proper for
the High Court to entertain an application
under Art. 227 against a decree passed by a
subordinate Court when the procedural law
allows an appeal against it and that appeal lay
to the High Court itself."
"The jurisdiction under Art. 227 of the
Constitution is an extraordinary jurisdiction
which is to be exercised sparingly and in
appropriate cases and it is not to be exercised
as if it were an appellate jurisdiction or as if it
gave unfettered and unrestricted power to the
High Court to do whatever it liked."
In Mohd. Yunus v. Mohd. Mustaqim, the Apex
Court has explained the power and scope of Article
227 in the following manner:--
"A mere wrong decision without anything more
is not enough to attract the jurisdiction of the
High Court under Art. 227. The supervisory
jurisdiction conferred on the High Courts
under Art. 227 of the Constitution is limited
"to seeing that an inferior Court or Tribunal
functions within the limits of its authority" and
not to correct an error apparent on the face of
the record much less an error of law. In
exercising the supervisory power under Art.
227, the High Court does not act as an
Appellate Court or Tribunal. It will not review
or reweigh the evidence upon which the
determination of the inferior Court or Tribunal
purports to be based or to correct errors of law
in the decision."
In the decision of M/s Puri Investments vs. M/s
Young Friends and Co. & ors. decided in Civil
Appeal No.1609 of 2022, the Hon'ble Apex Court
held that in exercise of jurisdiction of Article 227 of
the Constitution of India, the High Court could not
act as an appellate court by going deep into the
factual arena and by disagreeing with the final fact
finding forum. According to the Hon'ble Apex Court,
unless there was perversity in the order passed by
the Tribunal the High Court should not interfere.
The order of the Tribunal or inferior court should not
be tested through the lens of the appellate court,
unless the order is (a) erroneous on account of non-
consideration of material evidence, or (b) contrary to
the evidence, or (c) based on inferences that were
impermissible in law.
It appears from the records that the defendants
had failed on several occasions to appear before the
learned trial court through their learned advocate.
However, the defendants had contested the suit in
the first five years. There is no reason for this court
to upset the finding of the learned lower appellate
court. The court found that the defendants had
discharged their duty by engaging a learned
Advocate and could not be faulted for trusting him. It
is mandatorily made clear that the said defendants
shall ensure that they are represented and the suit
can be proceeded expeditiously within the time line
to be fixed by the learned Trial Judge as already
directed by the learned Additional District Judge, Re-
designated Court, Paschim Medinipur and disposed
of within a period of one year from the date of
communication of the order. The suit shall proceed
strictly in accordance with law.
This Court is in agreement that the principle
laid down by the lower appellate court that the
defendants cannot be blamed in this case. Once, the
litigant entrusts the learned Advocate to conduct the
case, it is the bounden duty of the learned Advocate
to ensure that his client is properly represented
before the court.
Thus, the judgment and order impugned, is
upheld. The order of the learned Additional District
Judge, Re-designated Court must be complied with.
Accordingly, this revisional application is
disposed of.
All the parties are directed to act on the basis of
server copy of this order.
(Shampa Sarkar, J.)
