FUL CHAND KUHAR Vs. BHAGABATI KUHAR @ PIOJAPATI

JUDGEMENT

(1.) This revisional application is directed against the judgment and order dated 9th April, 1997 by the learned Assistant District Judge, Sealdah in Misc. Appeal No. 113/96 of that Court under which he allowed that Misc. Appeal on contest with cost of Rs. 1,000.00 payable by the appellant to the respondent within 15 days from the date of communication of that order and he also set aside the order of dismissal passed by the trial Court on the petition under Order 9 Rule 13 of C.P.C. filed by the defendant appellant before the trial Court. The relevant facts leading to the said Misc. Appeal were that the respondent-plaintiff filed a suit for eviction against the defendant-appellant who was allegedly his licensee in respect of the suit premises on the ground of revocation of that licence. After filing the suit he took all necessary steps including the step that he served summons on the defendant by registered post as well as through the Court's bailiff as per the order of the trial Court. The Bailiffs report was that having not found the defendant in the premises he affixed the summons on a conspicuous part of the suit premises. Although such service by affixation was quite in conformity to the law and could be treated as satisfactory under the circumstances, the Court for the sake of abundant precaution also allowed the plaintiff to serve another fresh notice by registered post with A.D. on the defendant and it was found that the said registered letter was duly served on the defendant personally who after receiving it put his L.T.I. on the A.D. card. That A.D. card is lying with the record. Therefore the question that the defendant could not know about the filing of the suit has not been convincingly brought home by the defendant. Moreover the order sheet shows that Mr. Srimanta Nayak and Mr. R. Singh, two learned Lawyers, having been engaged by the defendant by means of Vakalatnarna appeared for the defendant on 7th Feb., 1991 before the trial Court as that was the date fixed awaiting the S.R. of the summons issued against him. The said learned Advocate prayed for an adjournment to file written statement on behalf of the defendant. From the records of the lower Court the Vakalatnarna bearing L. T. I. of the defendant Bhagabati Kuhar, is found. In his deposition the defendant as P.W. has admitted that this L.T.I. on the Vakalatnama was his. But he has added one line in his deposition to the effect that he granted this power to the said lawyer in connection with a matter touching his electric bill. It is curious that the said two lawyers who admittedly conducted the defendant's case in another criminal proceeding and against whom he has not a single word to say to the effect that they have been in any way inimically disposed towards him, would act against the interest of the defendant by going to the extent of appearing on his behalf in the Court by filing petition praying for time to file written statement on his behalf. This sounds absurd and totally against the probabilities. Unless and until they were authorised to move before the Court in such a way, such lawyers were the last persons to go to the extent of entering appearance before the Court and praying for time to file W.S. without definite instruction. Such goes against the accepted mode of conduct of the Advocates. The petitioner has miserably failed to offer any explanation about this improbability or absurdity underlying his story that the said Advocate without informing him anything about the pendency of such a suit before the Court appeared on his behalf on their own. The fact that his empowered lawyer attended the Court on his behalf and prayed for time to file W.S. speaks a volume against the genuineness and acceptability of his story that he appointed the said lawyer to conduct a matter in connection with some electric bill. Moreover, when he has made out such a story, he ought to have proved that story to the hilt. He has not shown how he had the necessity of appointing the aforesaid lawyers in connection with the payment of electric bill. He has not given any particulars of any case with the electric department concerned as alleged in connection with which he might have faced the necessity of appointing an Advocate. Nor his said Advocate is coming to the Court to depose in support of such a story as stated above. On the other hand, the said learned Advocate has deposed before the Court as P.W. 2 stating in unequivocal language that on 7th Feb., 1991 he. attended the Court by filing the Vakalatnama which the defendant had granted in his. favour and as per instruction of the defendant he filed the petition praying for time enabling him to file the W.S. and he appeared in that suit on behalf of the defendant as he was empowered by him to represent him. Learned Advocate deposed this on the basis of the entries of his diary and not from his memory. He has further stated that on the date next fixed that is 24th April, 1991 again he came to the Court on behalf of his client, namely, the defendant of this case and made a similar prayer for time to file W.S., but since thereafter the defendant did not make any contract with him in connection with this case and hence he did not appear before the Court in connection with that case. There is nothing in his cross-examination to put any of the above statements into question. It is not the suggestion of the defendant anywhere that this lawyer became unfriendly or antagonistic to the defendant due to any reason. On the other hand, it is his statement in his cross-examination that he was introduced to the defendant by Mr. Ram Singh, another Advocate belonging to the criminal Court.

(2.) Thus the defendant-O.P. has miserably failed to substantiate his allegations made before the Trial Court in his petition under Order 9 Rule 13 to the effect that he did not receive the summons of the suit or that he was completely ignorant as to the filing or pendency of the suit or that he did not engage any such lawyer in connection with the suit or that he came to know for the first time from information supplied in an information-slip taken from the Court that such a suit had been filed against him. It is not understood how the appellate Court took an unjustifiable view on the same facts and circumstances and on the same set of evidence on which the trial Court took the right view. It surprises me how he could change the sex of the defendant by treating him as a female person although in the records there is nothing to give such a misleading impression. The name of the defendant is Bhagabati Kuhar. It seems seeing such a name alone perhaps he took the person to be a member of the weaker sex and embarked on an exercise glowering compassion on line without caring to find out the real position from the materials on record. He has held that the petitioner is an "unlettered woman" and "considering her illiteracy she should be given a chance to contest the suit." This shows total non-application of mind by the Asst. Dist. Judge concerned which is not expected from such a senior Judicial Officer. Further, he has given the reasoning that since the vakalatnama in question was thumb impressed allegedly by the appellant at the instance and in the presence of another person named 'R. Singha', this R. Singha would have been a "good witness", but he has not been examined and from this the Court below comes to the finding that the appellant-petitioner should he given a chance to contest. But it is not understood why this Learned Assistant Judge shut his eyes to the fact that the L.T.I. on the vakalatnama in question was admitted to have been put by the defendant-appellant himself. If that be so, how there could be any necessity for examining another person for saying that the L.T.I. had been put by the defendant? Another instance of non-application of mind to the materials on record by this learned Assistant District Judge appears to be surprising. He lays emphasis on the fact that summons was not personally served on the defendant and the non-menioning of the name of witness to the service by affixation, also rendered these mode of service unsatisfactory. But he remains totally silents to the fact that the notice was admittedly received by the defendant personally when it was sent by registered post.

(3.) In view of the these reasons, it is palpable that the findings of the appellate Court below are totally perverse and incorrect and cannot be sustained. Particularly his comments that the appellant is an "illiterate woman" and in view of such illiteracy she should be given a chance to contest are off the record and factually untrue and betrays his utter non-application of mind to the materials on record.