PHANI BHUSAN MUKHERJEE Vs. PHANI BHUSAN MUKHERJEE

JUDGEMENT

(1.) This Rule has been obtained by the plaintiff against an order of the 1st Munsif, Hooghly, in Misc. Judicial Case No. 1 of 1955 by which the learned Munsif has dismissed the plaintiff's application under Order 9, Rule 4 of the C. P. C. The suit out of which this Rule arises was instituted by the plaintiff on the 23rd December, 1950 for a declaration of title to and recovery of possession of a certain sum of money due upon an award under the Land Acquisition Act. The plaintiff is a diety named Banlinga Shiva Thakur represented by his shebait, Shri Phani Bhusan Mukhopadhyay. After the completion of the preliminary stages, the suit was fixed for peremptory hearing on the 29th May, 1952 on which date the plaintiff attended the Court but the defendants were absent and the suit was taken up for ex parte hearing. The plaintiff shebait Phani Bhusan Mukherjee was examined and two documents were marked as Exs. 1 and 2. The plaintiff's claim was held by the Munsif to have been proved and an ex parte decree followed. This ex pafte decree, however, was subsequently set aside on an application under Order 9, Rule 13 of the Code of Civil Procedure by an order dated the 3rd March, 1953. Thereafter on the 4th September, 1954, the suit was fixed for peremptory hearing on the 12th December, 1954. On the 12th December, 1954 both the parties were found absent on call; but an application was filed on behalf of the plaintiff to the effect that the plaintiff's pleader's clerk had committed a mistake in noting the date of hearing and the plaintiff, therefore, prayed for passing an ex parte decree upon the materials already on the record upon which an ex parte decree had been passed on the previous occasion and in the alternative the plaintiff prayed for adjournment of hearing of the case. The learned Munsif rejected both the prayers and dismissed the plaintiff's suit presumably under Order 9, Rule 3 of the Code of Civil Procedure. Thereupon the plaintiff filed an application under Order 9, Rule 4 alleging that there were two suits, viz., Title Suit No. 214 of 1952 and Title Suit No. 214 of 1950 in both of which the pleader engaged by the plaintiff appeared. The suit out of which this Rule arises is Title Suit No. 214 of 1950, but the pleader's clerk through mistake made a note in his diary that this suit had been fixed for hearing on the 4th December, 1954 although that was the date fixed for hearing of Title Suit No. 214 of 1952. The plaintiff further alleged that acting under the said mistake the clerk did not inform him and he was prevented from appearing and taking any steps whatsoever on the 2nd December, 1954. The diary of the clerk has been produced at the hearing of this case and it is Ex. 1(a). The entry in this diary shows that there was no mistake with regard to the date of hearing of this suit. The entry in the diary dated the 2nd December, 1954 shows that this suit was correctly shown therein as fixed for peremptory hearing. Upon these materials the learned Munsif dismissed the plaintiff's application by an order dated the 22nd January, 1955 and against that order the plaintiff has obtained this Rule.

(2.) Mr. Das Gupta appearing in support of this Rule has raised two points before me. In the first place, he argues that there was some mistake in the diary of the pleader's clerk as a result of which he failed to inform the plaintiff about the correct date of hearing of the suit. On examining the material on record, I am satisfied that there is no sub-stance in this point. I have examined Ex. l(a), which is a certified copy of the entry in the diary of the pleader's clerk dated the 2nd December, 1954. It shows that Title Suit No. 214 of 1950 was posted on the 2nd December, 1954 as fixed, for hearing on that date. Moreover the plaintiff was not in any way misled by any supposed mistake of the pleader's clerk because the pleader's clerk did not communicate the date of hearing to the plaintiff. The only letter written by the clerk to the plaintiff is dated the 7th December, 1954, on a date subsequent to the dismissal of the suit. The first point raised by Mr. Das Gupta accordingly fails.

(3.) The second point raised by Mr. Das Gupta is to the effect that under the provisions of Order 17, R. 2 of the Code of Civil Procedure, the Court has a discretion to proceed either under any of the provisions of Order 9 or to adjourn the hearing of the suit to another date and in a case like the present one, where there are materials on the record which, if uncontradicted, would entitle the plaintiff to a decree, the Court should be held to have exercised its discretion improperly if the suit is dismissed for default. Reliance was placed for this proposition upon a decision of Fazl Ali J. in the case of Chamak Lal Mondal v. Manji Mandal, AIR 1929 Pat 248 (A). In that case the learned Judge observed as follows: