NAMITA MONDAL Vs. GORACHAND PAUL @ G.C.PAUL

JUDGEMENT

(1.) The original revisional application C. O. No.1630 of 2010 arose out of an order dated 16th of June, 2009 passed by learned trial court in Title Suit No.477 of 1995. As none appeared for the petitioner, the same was dismissed for default by this court vide order dated 13th of January, 2011. This application being CAN No.1860 of 2013 has been filed praying for restoring said revisional application in its original file and number on recalling order of dismissal for default dated 13th of January, 2011 on condonation of delay. Initially the petitioner took the plea that learned advocate of the petitioner missed the matter in the list resulting its dismissal for default on 13th of January, 2011. It was further stated therein that the daughter of the petitioner met learned advocate of the High Court on 6th of February, 2013 to ascertain how ex parte hearing in the court below could be fixed as there was an order of stay in this case by the Hon'ble High Court, and that thereafter learned advocate on record in the High Court through an officer of the department learnt about said order of dismissal for default and that the petitioner for the first time came to learn about said order of dismissal for default on 9th February, 2013. Thereafter, the petitioner through her learned counsel of this Court filed this application praying for recalling of said order of dismissal on condonation of delay.

(2.) The O. P. filed an affidavit-in-opposition alleging that learned advocate on record sent a notice dated 9th of April, 2013 enclosing a copy of the application wherein it was alleged that the petitioner met her learned counsel at High Court on 9th of February, 2012 to intimate about an ex parte proceeding in the suit in the trial court and that from the information slip dated 10th of February, 2012 it was learned that revisional application was dismissed for default on 13th of January, 2011. The copy of said application was made annexure A in said affidavit-inopposition. Another document namely a copy of the adjournment petition dated 19.11.2012 filed by the petitioner in the court below was made annexure B wherefrom it appears that the petitioner prayed for adjournment in the court below on 19.11.2012 as her revisional application was dismissed for default and that petitioner has already filed an application for restoration of said revisional application and that till disposal of said restoration application the matter should be adjourned in the court below.

(3.) In the affidavit-in-reply the petitioner tried to explain said anomaly. According to her it was true that she came to her lawyer Smt. Anupama Hazra at High Court on 9th of February, 2012 as learned trial court was trying to proceed the matter ex parte. Thereafter, after obtaining information slip from office it was learnt on 10th of February, 2012 that the revisional application was dismissed for default on 13th of January, 2011. It is her further case that before affirmation of said application she became ill and could not come to court and also could not inform her senior counsel Shri Jiban Ratan Chatterjee. It is further alleged that she was not aware that she was required to come to the High Court again for affirmation of said restoration application. It is her case that as learned trial court further proceeded with the ex parte hearing, she again came to the High Court and met her senior counsel Shri Jiban Ratan Chatterjee who was not aware of the previous developments and after obtaining fresh information slip from the department the present restoration application was drafted and filed. She took the plea that though she was aware of the order of dismissal on 10th of February, 2012 but she did not understand the technicalities of the limitation and accordingly, there was misstatement in the restoration application regarding the first date of knowledge about dismissal of the revisional application for default. It was also alleged that no notice was served upon learned counsel for the O. P. by registered post as alleged and that the entire brief of the case was lost from the High Court. It was further alleged that learned advocate on record was also ill for considerable period and there was communication gap in between the client and learned advocate on record, and in between learned senior counsel and petitioner resulting misstatement in the petition regarding the date of knowledge.