Tripura High Court
Tripur India Pvt. Ltd vs The Indian Oil Corporation Ltd on 14 December, 2022
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HIGH COURT OF TRIPURA
AGARTALA
CRP No.94 of 2022
Tripur India Pvt. Ltd.,
Madhya Banamalipur, East Thana Road, Agartala, P.O. Agartala, Pin 799001, P.S.
East Agartala, District West Tripura.
Represented by its Managing Director Sri Haridas Saha
----- Petitioner(s) (Defendant No-11)
Versus
The Indian Oil Corporation Ltd.,
A Central Government undertaking and a Body Corporate constituted under the
Indian Companies Act, 1956,
Having its registered office at G-9, Ali Yaburjang Marg, Bandra East, Mumbai
400051, with various Divisions of its business activities throughout India including
one such division situated in the State of Assam under the name and style "Indian
Oil Corporation Ltd (Assam Oil Division)" having its Head Office at Digboi, Assam.
-----Respondent(s) (Plaintiff)
For Petitioner(s) : Mr. S.M. Chakraborty, Sr. Adv.
Ms. Ankita Pal, Adv.
For Respondent(s) : Mr. D.K. Biswas, Sr. Adv.
Mr. G.K. Nama, Adv.
Mr. S.S. Debnath, Adv.
Date of Hearing : 1st December, 2022.
Date of Pronouncement : 14th December, 2022.
Whether fit for reporting : NO
B_E_F_O_R_E_
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
JUDGMENT & ORDER
By means of this petition filed under Article 227 of the Constitution,
petitioner has sought for quashing the order dated 06.09.2022 passed by the Civil
Judge (Sr. Div), West Tripura, Agartala, Court No.1 in case No. CM(J)31 of 2022
arising out of TS No.59 of 2003. By the impugned order, the learned trial court
rejected an application filed by the petitioner under Order IX, Rule 7 CPC on the
ground that it was filed belatedly, the delay was not explained and if the petition
was allowed, it would prejudice the other side seriously. Aggrieved petitioner has
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approached this Court by filing this petition under Article 227 of the Constitution for
exercising supervisory jurisdiction of this Court and quash the impugned order
passed by the learned Civil Judge (Sr. Div).
[2] Background
facts of the case are as under:
The Indian Oil Corporation Ltd. which is a Central Government
undertaking and a body corporate constituted under the Indian Companies Act,
1956 instituted TS No.59 of 2003 in the Court of the Civil Judge (Sr. Div) at
Agartala against as many as 11 (eleven) defendants seeking the relief of perpetual
injunction, decree for specific performance of contract as well as decree for
declaring various conveyance deeds illegal and void etc. In the said suit, present
petitioner namely, Tripur India Pvt. Ltd. was impleaded as respondent No.11. In the
course of the proceeding of the said title suit, present petitioner Tripur India Pvt.
Ltd. moved the trial court for extension of time for filing written statement of
defence. On such petition, time was extended by the court from 29.11.2013 to
18.12.2013. Unfortunately, on 18.12.2013, the court did not function due to sudden
demise of one of the Bar members. The case was adjourned till 05.02.2014. In view
of an amendment of the plaint on 05.02.2014, petitioner was provided with an
opportunity to file additional written statement on 14.03.2014. Since, no step was
taken on behalf of the petitioner before the trial court on 14.03.2014, it was
ordered that the suit shall proceed ex parte against the petitioner (defendant No.11
in TS No.59 of 2003). The case was then adjourned till 02.05.2014. On 02.05.2014,
petitioner appeared before the trial court. He continued filing memo of appearance
on the next appointed dates which were 28.06.2014 and 04.08.2014. He was also
represented by his appointed counsel on those dates. On the next date i.e. on
27.09.2014, he appeared along with his appointed counsel and filed one written
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objection. The trial court having noted that by an order passed on 14.03.2014,
court decided to proceed ex parte against the petitioner, declined to accept the
written objection.
[3] Five years thereafter, for plaintiff's default, the suit was dismissed
on 14.02.2019. The plaintiff in TS No.59 of 2003 approached the court for
restoration of the suit by filing an application under Order IX, Rule 9 CPC which was
registered as Misc. (Resto) No.07 of 2019. Notice of the petition was issued to the
present petitioner who was defendant No.11 in the title suit. Accordingly, he
appeared and filed written objection. Ultimately, TS No.59 of 2003 was restored to
file by an order dated 04.03.2020.
[4] The present petitioner who was defendant No.11 in the suit sought
for permission of the court to file written statement in the suit since he was a party
to the restoration proceeding and opportunity was also given to him to file written
statement against the petition for restoration. After restoration of the title suit on
04.03.2020, normal functioning of the court was disrupted due to the outbreak of
Covid 19 pandemic. Court work was suspended for few months. After resumption of
court work, a date was fixed on 02.01.2021 in the case and the plaintiff of TS No.59
of 2003 filed examination-in-chief of one PW on affidavit. A date was thereafter
fixed for cross-examination of the PWs but the present petitioner who was present
in court along with his appointed advocate was not allowed to cross-examine the
PW on the ground that long back on 14.03.2014, an order was passed to proceed
ex parte against him due to his failure in filing written statement on the appointed
date. Thereafter, on 03.04.2021, the case was posted for recording of evidence of
witnesses of the defendants. It was adjourned till 19.04.2021 since the defendants
sought for time. Case was again adjourned till 04.05.2021. Due to second wave of
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Covid 19 pandemic, court work was again suspended from 28.04.2021 and the
suspension continued till 01.08.2021. After resumption of work, 10.12.2021 was
appointed for cross-examination of the DWs. On that date, petitioner who was
defendant No.11 in TS No.59 of 2003 filed the petition under Order IX, Rule 7 CPC
showing reasons as to why he was absent on 14.03.2014 on which the court
decided to proceed ex parte against him due to his absence in court.
[5] Plaintiffs raised objection against such petition filed by the
petitioner (defendant No.11). Plaintiff's objection was mainly on the ground of delay
and laches on the part of the petitioner (defendant No.11). The petitioner, on the
other hand, contended that even after the court decided to hear the case ex parte,
there was no reflection in the daily cause list that the next date was appointed for
ex parte hearing. Moreover, there was no material progress in the case till
February, 2019. Subsequently, after resumption of court work after Covid
pandemic, the case was listed for cross-examination of DWs. Despite his presence
in court, petitioner (defendant No.11) was not allowed to take part in the
proceeding to cross-examine the DWs.
[6] In this background facts of the case, the trial court after hearing
the counsel of the parties rejected petitioner's application under Order IX, Rule 7
CPC viewing that if at this belated stage, he is allowed to enter into the proceeding,
the entire proceeding would start from the very beginning causing further delay in
the disposal of the case which is pending from 2003. For better appreciation of the
case, it would be appropriate to reproduce the following extract of the order of the
learned Civil Judge (Sr. Div):
".............................Thus, from the above, it is evident that numerous
dates passed by and the case reached the advanced stage of trial and it
was at this stage, the instant petition was filed by the defendant
petitioner. No reason for the delay of more than seven years is properly
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explained by the petitioner. In the cause list, in normal course the
details of each days order is not mentioned. Only the next date is
mentioned and the reason for fixing the next date. It was the duty of
the petitioner to check as to what order was passed in the case. But the
petitioner failed to do so and file the petition at an earlier stage.
Moreover, even if it is assumed that on 14.03.20214 the defendant -
petitioner did not have knowledge about the ex parte order passed by
my Ld. Predecessor against him, but this does not explain the reason
behind his lack of knowledge about the order dated 14.03.2014 on
27.09.2014 when written objection filed by him was rejected and,
thereafter, on 18.032.2021 when OP was prevented from cross-
examining the plaintiff's witnesses. But at that stage also the
defendant petitioner did not file any petition for setting aside the
exparte order dated 14.03.2014. Rather he waited till 29.01.2022 to file
the instant petition. This shows that the delay in filing this petition by
the defendant petitioner was intentional and no reason has been cited
by the petitioner for his failure to file the instant petition at an earlier
occasion when repeatedly he was prevented at various stages firstly
from filling written objection and thereafter from cross-examining the
Pws. In no manner this intentional delay and failure of the petitioner
can be condoned. If the petition is allowed at this final stages of the
case, then severe prejudice will be caused to the OP as well as the
other parties to the suit. Situated thus, I am of the reasoned opinion
that the petitioner has failed to assign good cause for previous non
appearance. So the petition filed by the petitioner is hereby rejected.
.........................................................................................................."
[7] Heard Mr. S.M. Chakraborty, learned senior advocate appearing for
the petitioner along with Ms. Ankita Pal, learned advocate. Also heard Mr. D.K.
Biswas, learned senior advocate appearing for the respondent (plaintiff in TS No.59
of 2003) along with Mr. G.K. Nama, learned advocate.
[8] Mr. Chakraborty, learned senior counsel appearing for the
petitioner have vehemently argued that it will amount to travesty of justice if the
petitioner (defendant No.11) is not allowed to contest the case. Relying on the
decision of the Apex Court in the case of Baby vs. Travancore Devaswom
Board reported in (1998) 8 SCC 310, counsel has contended that in spite of the
revisional power being not available to the High Court in such circumstances, it still
has powers under Article 227 of the Constitution to quash the orders passed by the
Tribunals if the findings of fact are found to have been arrived at by non-
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consideration and material documents, the consideration of which could have led to
an opposite conclusion. Counsel submits that the trial court never considered the
petition filed by the petitioner and the materials produced by him in support of his
contentions made out in the said petition otherwise the trial court would have come
to a different conclusion. Relying on the decision of the Hon'ble Apex Court in the
case of Salem Advocate Bar Association, T.N. vs. Union of India reported in
(2005) 6 SCC 344 counsel contends that a rule or procedure always has to be
constructed or interpreted in such a manner which promotes justice and prevents
miscarriage of justice. Counsel contends that the trial court resorted to a
mechanical approach and misinterpreted the relevant legal provisions in deciding
the petition filed by the present petitioner (defendant No.11). Counsel has relied on
paragraph 20 of the said judgment which reads as under:
"20. The use of the word 'shall' in Order 8 Rule 1 by itself is not
conclusive to determine whether the provision is mandatory or
directory. We have to ascertain the object which is required to be
served by this provision and its design and context in which it is
enacted. The use of the word "shall" is ordinarily indicative of
mandatory nature of the provision but having regard to the context in
which it is used or having regard to the intention of the legislation, the
same can be construed as directory. The rule in question has to
advance the cause of justice and not to defeat it. The rules of procedure
are made to advance the cause of justice and not to defeat it.
Construction of the rule or procedure which promotes justice and
prevents miscarriage has to be preferred. The rules of procedure are
the handmaid of justice and not its mistress. In the present context,
the strict interpretation would defeat justice."
[9] Mr. D.K. Biswas, learned senior counsel contends that the suit was
instituted in the year 2003 and if after 19 years of its pendency the defendants are
again allowed to participate in the suit by setting aside the ex parte order against
them, the suit will again start from the beginning which is likely to cause immense
hardship to the plaintiff of the suit who are fighting for their legitimate claim for the
last 20 years. Mr. Biswas, learned senior counsel contends that power under Article
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227 of the Constitution has to be used sparingly and the position of law with regard
to exercise of power by the High Court under Article 227. The principle has been
summed up by the Hon'ble Apex Court in Surya Dev Rai vs. Ram Chander Rai
& Ors. reported in (2003) 6 SCC 675 which is as under:
"27. In Chandrasekhar Singh v. Siva Ram Singh, (1979) 3 SCC 118, the
scope of jurisdiction under Article 227 of the Constitution came up for
the consideration of this Court in the context of Sections 435 and 439
of the Criminal Procedure Code which prohibits a second revision to the
High Court against decision in first revision rendered by the Sessions
Judge. On a review of earlier decisions, the three-Judge Bench summed
up the position of law as under :-
(i) that the powers conferred on the High Court under Article 227 of the
Constitution cannot, in any way, be curtailed by the provisions of the
Code of Criminal procedure;
(ii) the scope of interference by the High Court under Article 227 is
restricted. The power of superintendence conferred by Article 227 is to
be exercised sparingly and only in appropriate cases, in order to keep
the subordinate courts within the bounds of their authority and not for
correcting mere errors;
(iii) that the power of judicial interference under Article 227 of the
Constitution is not greater than the power under Article 226 of the
Constitution;
(iv) that the power of superintendence under Article 227 of the
Constitution cannot be invoked to correct an error of fact which only a
superior court can do in exercise of its statutory power as the court of
appeal; the High Court cannot, in exercise of its jurisdiction under
Article 227, convert itself into a court of appeal."
[10] Counsel contends that in view of the said judgment of the Hon'ble
Apex Court, this Court has no jurisdiction to entertain the present petition. Counsel,
therefore, urges the Court for dismissal of the petition.
[11] I have considered the submissions of learned counsel representing
the parties in the light of the decisions of the Hon'ble Apex Court referred by each
of them. Perused the entire record.
[12] It has surfaced from the record that even though the institution of
the case dates back to 26.08.2003, there was no material progress of the case till
2019. It is evident from the impugned order that the plaintiff was also negligent in
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conducting their case before the trial court as a result of which the suit was
dismissed for default of the plaintiff on 14.02.2019. At that time, the case was still
at the pleadings stage. The plaintiff did not examine any witness till then. After the
case was dismissed on 14.02.2019, plaintiff filed petition under Order IX, Rule 9
CPC seeking restoration of their suit. The petition was allowed and the suit was
restored by an order dated 04.03.2020. Surprisingly, though the present petitioner
was made a party to the restoration proceeding and he was served with notice of
the proceeding and also heard in the matter, he did not get opportunity to take part
in the proceeding after the suit was restored to file. The court was not unaware of
the fact that the suit proceeded ex parte against him before the suit was dismissed
for default. Still he was given notice of the restoration proceeding and the
restoration petition was allowed after providing opportunity of hearing to him. In
these circumstances, the court should have allowed an opportunity to the
defendant petitioner to take part in the rest of the proceedings.
[13] Commencing from the date of institution of the case on
26.08.2003, not a single witness of the plaintiff could be examined during the
succeeding 17 years even though the case proceeded ex parte against the present
petitioner (defendant No.11). In these circumstances, justice cannot be denied to
the present petitioner (defendant No.11) on the ground that the whole delay in
disposal of the case is attributable to him. Rather it is absolutely clear from the
record that for his absence on a particular day i.e. on 14.03.2014 which was not
even fixed for hearing, court decided to proceed ex parte against him. Thereafter,
even though he was present in the court along with his advocates on all other
suceeding dates and even in the restoration proceeding notice was served on him
and the case was restored after giving opportunity of hearing to him, surprisingly
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he was not allowed to take part in the post restoration proceeding and he was not
allowed to either cross-examine the witnesses of the plaintiff or to adduce any
defence witness. The procedure followed by the court is manifestly illegal and
unsustainable. I am not unaware of the fact that the case is pending for the last 19
years at the trial court. For this reason alone petitioner's plea cannot be discarded.
The reasons stated above would clearly indicate that the petitioner alone cannot be
blamed for such delay. In these circumstances, the impugned order dated
06.09.2022 passed by the trial court is set aside.
[14] The trial court is directed to allow the petitioner (defendant No.11)
to cross-examine the witnesses whose evidence has already been recorded. He will
also be allowed opportunity to adduce evidence, if he so desires. However, towards
expenses to be incurred for reproducing the witnesses already examined for cross-
examination by the petitioner, this Court is of the view that it would not be unfair to
ask the petitioner to deposit a sum of Rs.7,000/- (Rupees seven thousand) as cost
before the trial court within a period of 10 (ten) days from today which shall be
given to the plaintiff through their counsel. The trial court shall make endeavour to
dispose the case as expeditiously as possible, preferably within a period of 6(six)
months from today. The parties are directed to cooperate for such time bound
disposal of the case.
[15] In terms of the above, the petition stands disposed of. Pending
application(s), if any, shall also stand disposed of.
JUDGE
Rudradeep
CRP No.94 of 2022
