SULEKHA NAG Vs. PRANATI BANERJEE

JUDGEMENT

(1.) CHALLENGE is to the order dated August 27, 2008 passed by the learned Judge, S.C.C. Court at Sealdah in the Misc. Appeal No.62 of 2007 thereby setting aside the order no.35 dated July 19, 2007 passed by the learned Civil Judge (Junior Division), First Court, Sealdah in the Misc. Case No.31 of 2006, arising out of the Title Suit No.222 of 2003 of the First Court of learned Civil Judge (Junior Division) at Sealdah.

(2.) THE decreeholder has filed this application for setting aside the order dated July 19, 2007 passed in the Misc. Case No.31 of 2006. He obtained an ex parte decree for recovery of possession. THEreafter, the judgment debtors filed an application under Order 9 Rule 13 of the C.P.C. which was registered as Misc. Case No.31 of 2006. That misc. case was rejected by the learned Civil Judge by the order dated July 19, 2007. Being aggrieved by that order, the judgment debtors preferred a misc. appeal being Misc. Appeal No.62 of 2007 which was allowed by the impugned order thereby setting aside the order dated July 19, 2007 passed in the Misc. Case No.31 of 2006 and also the ex parte decree passed in the Title Suit No.222 of 2003 with costs. Being aggrieved by that order, the decreeholder has preferred this revisional application. Now, the point for consideration is whether the impugned order should be sustained.

(3.) THIS being the position, I am of the view that the paper publication may not come to the knowledge of the judgment debtors when it was published. When such a plea was taken, it should be considered whether such plea can be accepted. Having considered the nature of the relief sought for in the suit, it could well be decided that had the judgment debtors knowledge of the institution of the suit, they would have taken appropriate steps in the suit. Therefore, the contention of the judgment debtors that they had no knowledge about the institution of the suit, should be accepted. The learned lower appellate court in exercising discretionary power has taken a pragmatic approach and held that negligence, if any, on the part of the judgment debtors could have been compensated by way of imposing costs on him and that the doors of justice should not be shut on mere technicalities. I am of the view that such reasonings by the learned lower appellate court amount to correct approach in dealing with such matters. Therefore, the learned lower appellate court has rightly held that the learned court below was not justified in dismissing the application under Order 9 Rule 13 of the C.P.C. Now service of summons or no knowledge of the institution of the suit is the sufficient cause for non-appearance on the date of hearing of the suit. The learned appellate court has awarded an amount of costs of Rs.3,000/- which, in my opinion, is an adequate compensation for setting aside the ex parte decree.