PROMODE KR BANERJEE Vs. ANUSUYA DHIRAJ LAL KAMAKIA

JUDGEMENT

(1.) -The instant revisional application is directed at the instance of the plaintiff-petitioner-decree-holders against the Order No. 230 dated 31.8.91 passed by the learned Assistant District Judge, 4th court, Alipore, District 24 Parganas(south) in Misc. case No. 69 of 1978 arising out of the title suit No. 243 of 1973 renumbered as T.S. No. 111 of 1973. The admitted facts are as follows:- The suit was decreed ex parte on 7.8.78 by the trial court after rejecting an application for adjournment filed by the Op-defendant but not moved. Thereafter the petitioners put the ex parte decree into execution in Title Execution Case No.14 of 1978. It is also admitted that the petitioners were resisted in the matter of taking delivery of possession for which the police help was prayed for and ultimately possession in respect of the suit premises through police help was delivered to the petitioners in the above execution proceeding on 14th February, 1979. In the mean time on 19th September, 1978 the Op-defendant-Judgment-debtor filed an application under Order 9, Rule 13 read with section 151 of the Code of Civil Procedure for setting aside the ex parte decree along with an application under section 5 of the Limitation Act for condonation of delay in the matter of filing the application under Order 9 Rule 13 CPC. The application for restoration was registered as Misc. case No.69 of 1978. By the impugned order the learned Assistant District Judge allowed the application for condonation of delay in the matter of filing the Misc. case under order 9, Rule 13 CPC and also allowed the prayer under Order 9, Rule 13 CPC and set aside the ex parte decree and restored to its original file and number. It appears from the impugned order that the learned trial judge considered the application under section 5 of the Limitation Act and also the Misc. case under Order 9 Rule 13 CPC on the basis of the evidence adduced by both the parties. He has also considered the medical certificate given by the PW2 dated 15.9.78 and has come to a finding that the OP-defendant was seriously ill and was under treatment of the doctor PW2 for which she could not attend the court on 7.8.78 i.e. the date fixed for peremptory hearing of the suit and he was also satisfied that for this illness the OP could not file the application under Order 9, Rule 13 within the period of limitation. It appears from the impugned order that the learned trial judge was satisfied that the OP had sufficient cause for not filing the Misc. case under order 9. Rule 13 within the prescribed period of limitation and he was also satisfied that the OP was prevented by a sufficient cause i.e. her illness from appearing on 7.8.79 when the suit was called on for hearing. Before coming into the merits of the instant revisional application it must be borne in mind that the revisional court will not go into any question of fact which has been decided by the trial court unless it can be shown that while passing the order challenged under section 115 of the Civil Procedure Code the trial court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity and that if the said order is a allowed to stand it would occasion a failure of justice or cause irreparable injury to the petitioners.

(2.) In a case reported in AIR 1987 SC 2179 (Vinod Kumar Arora, v. Smt. Surjit Kaur,) cited by Shri Dasgupta the learned Advocate appearing for the petitioners it has been held by the Supreme Court that the rule that when the Rent Controller and the appellant authority have rendered concurrent findings of fact, the High Court is not entitled to disregard those findings and come to a different conclusion of its own would apply only where the findings have been rendered with reference to facts and not on the basis of non-existent material and baseless assumptions. Shri Dasgupta relying on the above decision of the Supreme Court has submitted that the trial court's findings on the point of sufficient cause preventing the petitioner from the appearing before the court below on the date of hearing of the suit is not proper but there is nothing on record to justify such submission of Shri Dasgupta. On the other hand, from the impugned order it appears that the trial court has considered the evidence adduced by the parties very carefully. There is nothing to show that his findings are based on conjectures and surmises and have lost sight of relevant pieces of evidence which have not been controverted. In a case reported in AIR 1972 SC. 2379 (Shri M. L. Sethi, v. Shri R.P. Kapur,) the Supreme Court has considered the revisional powers of the High Court to be exercised under section 115 of the Code. It has been unambiguously settled there by the Supreme Court in the aforesaid case that once High Court is satisfied that the trial court's order does not attract the Clauses (a), (b) and (c) to section 115 it has no power to interfere because it differs from the conclusions of the subordinate court on question of fact or law. Even an erroneous decision on a question of law reached by the subordinate court which has no relation to questions of jurisdictions of that court, cannot be corrected by the High Court under section 115. In a subsequent decision reported in AIR 1988 SC 1845 (Smt. Rajbir Kaur and another, v. M/s. S. Chokosiri and Co.,). The Supreme Court has emphasised the incompetence of the Revisional Court to re-assess the evidence under section 115. The Supreme Court has observed as follows:-

(3.) It is, therefore, quite well-settled while exercising its jurisdiction under section 115 CPC the High Court cannot interfere with a finding of fact made by the court below merely because it might take a different view of the facts and exercise the discretion differently. Shri Dasgupta has submitted that the learned trial court should not have allowed the application under section 5 of the Limitation Act in view of the facts and circumstances of the case but this also would lead us to reappreciation of evidence which is not permissible while exercising the powers under section 115. Furthermore, there is nothing to show that the learned trial Judge allowed the application under section 5 of the Limitation Act arbitrarily, illegally without any evidence on record. Shri Dasgupta has referred to a decision of the Supreme Court reported in AIR 1962 SC 361 (Ramlal and others, v. Rewa Coalfields Ltd., ). But this case, in my opinion, does not support Shri Dasgupta in any way. It has been held by the Supreme Court that the failure of the appellant to account for his non-diligence during the whole of the period of limitation prescribed for the appeal does not disqualify him from praying for the condonation of delay under section 5. In the facts and circumstances of that case the Supreme Court has held that where the appellant did not file the appeal till the last day of limitation and as he fell ill on the last day of limitation is filing of appeal on a later date with a prayer for his delay to be excused would not disqualify him from applying for the excusing of delay. It has also been held by the Supreme Court there that if sufficient cause for excusing delay is shown discretion is given to the court to condone the delay under section 5 of the limitation Act.