SATPAL TANDON Vs. JYOTSNA GHOSE

JUDGEMENT

(1.) The defendant petitioner has moved this revisional application against an order dated the 8th June, 1989 passed by the learned Additional District Judge, 9th Court, Alipore, in Misc. Appeal No. 61 of 1989 dismissing the defendant's application under Order 9 Rule 13 of the Code of Civil Procedure thereby alarming the order of the learned Munsif dated the 6th February, 1989 passed in Misc. Case No. 63 of 1985.

(2.) The petitioner was inducted as a monthly tenant in premises No. P-39, Lake View Road, Calcutta, at a. monthly rant of Rs. 300 /- and a Title Suit being T.S. No. 529 of 1976 was filed against the petitioner in the Third Court of the learned Munsif, Alipore, on the ground of default only. On the 12th July, 1985 the suit was listed for peremptory hearing and on that very date it was decreed ex-parte. The petitioner filed an application under Order 9 Rule 13 of the Code of Civil Procedure being Misc. Case No 53 of 1985 before the learned Munsif. The learned Munsif after considering the facts and circumstances of the ease and by giving reasons on his findings dismissed the application. On appeal the learned Judge concurred with the findings of the learned Munsif and as said above dismissed the appeal. The learned Judge in his judgement indicated that the decree was passed on the 12th July, 1985 and after a lapse of about four years it was to be considered whether the defendant's application for setting aside the ex-parte decree should be allowed or not. Both the courts below, in short, did not rely on the medical certificate submitted by the petitioner by one Dr. R.N Samaddar as the courts below considered the said doctor's qualification as not a recognised one. Dr. R N Samaddar has got his certificate is, by the Council of Indo-Alapathy System of Medicine, Patna. But he could not provide pay proof to the effect that the said certificate is recognised by the Indian Medical Council Act by which registered medical practitioners are governed. It is also indicated in the judgment that the said Dr. Samaddar disclosed that he passed the medical examination from Bihar Medical College, but except a Higher Secondary Mark Sheet he could not produce further papers in support of his contention. Considering all these cases both the courts below came to the finding that the story of illness of the petitioner did not appear to be correct and it cannot be proved beyond doubt that he fell ill on the l2th July, 1985 and could not attend the Court. The petitioner also failed to produce any prescription in support of his illness. There was no way put for the learned Judge but to endorse the findings of the learned Munsif as the story of the illness of the petitioner could not be substantiated in the trial court.

(3.) Mrs. Pal, appearing with Mr. Kabir far the petitioner, submitted that the courts below failed to scanning the facts and going into the real question rather they confined themselves only with the aualification of the doctor concerned and to the question whether the doctor was a qualified doctor or a quack. From the grounds taken in the revisional application it appears that almost all the grounds relate to the doctor, Dr. R.N. Samaddar, and the entire emphasis of the petitioner is on the fact that the doctor was a qualified medical practitioner. Mr. Kabir has submitted that the learned Judge ought to have gone into the merit of the case and to see under what circumstances the petitioner could not attend the court and whether he was actually ill of not rather than making exercise on the subject of qualification and disqualification of the doctor concerned. In support of his contention Mr. Kahn cited two decisions-one of the Supreme Court and the other of this Court. In the case of Ajanta Transport (P) Limited, Coimbatore v. M/s. T V.K. Transports, reported in 1975 S.C. 123, it is stated that interference in revision could be done. A grant or refusal of a stage carriage permit on totally irrelevant grounds would be ultra vires or a case of excess power and such an act would be vitiated by a material irregularity and as such interference by the High Court under Section 115 of the Code of Civil Procedure would be justified. But, in my opinion, no such situation arises in this case. Another case of Smt. Hazera Khatun Bibi and others v. Rafique Molla and others, reported in 1989 (II) CHN 83 is related to amending a plaint When it is observed by the Division Bench that the court should be reluctant to interfere with the concurrent findings of fact. But if the essential ingredients necessary for finding of a fact have not, in fact, been found by the courts below, the court is bound to examine the question whether injustice or wrong is done. It cannot be that injustice must be perpetuated because it has been done two or three times in a case. I do not think that the courts below failed to consider any facts on record in their finding and neglected to give their reasons and as such I do not think this case too help the petitioner.