LAXMINARAYAN MOHAPATRA Vs. KARUNAKAR DAS

JUDGEMENT

(1.) Title Suit No. 43 of 1986 was filed for eviction and for realisation of arrears at rent. In the suit, an application for appointment of receiver was filed by the Plaintiff which was rejected with the observation that the arrears of rent can be realized by other means through Court. Depending upon such observation, Plaintiff filed an application on 30th April, 1988 to direct the Defendant to deposit the arrear rent for last 29 months as per the order, this application was registered as Misc. Case. Although prior to it the suit had been posted to 27 -6 -1988, on 30th April, 1988 no date was fixed. It was ordered that after filing of the order -sheet the petition is to be registered as misc. case, On 3 -5 -1988 to which date the suit was not posted, misc. case was registered and was posted to 11 -5 -1988 for filing objection On 11 -5 -1988, no objection was filed by the Petitioner and the misc. case was posted to 29 -6 -1988 for hearing. On 27 -6 -1988, the suit was posted to 20th July, 1988 for hearing. On 29 -6 -1988 the misc. case was posted to 26 -7 -1988 for hearing prior to it, on 20th July, 1988 to which day the suit was posted objection was tiled by the Defendant. Order reads as follows:

(2.) The order reveals that the learned Subordinate Judge has no control over the postings of the case and orders were passed mechanically.

(3.) On 30 -4 -1988 when the application was filed and Plaintiff was required to comply with certain directions, Court while fixing the date for the suit ought to have fixed a date for compliance of the direction. Defendant could nave notice of the date to be alert On 3 -5 -1988 when the matter was not in the cause list, the same being registered, notice ought to have been given to the Defendant. The so called opportunity as reflected in the order -sheet is no opportunity at all. On 20 -7 -1988 when order was passed to hear the petition on 18 -8 -1988 the earlier order on 29 -6 -1988 fixing the misc. case to 26 -7 -1988 automatically got amended by the order dated 20 -7 -1988. This unfortunate situation could have been avoided if slight care would have been given before directing that the Defendant would not be permitted to contest; maximum care ought to have been taken by the learned Subordinate Judge to see that full opportunity has been given to the Defendant. Drastic order of the nature of depriving a party from contesting the litigation in exercise of inherent power which is assailed ought not to have been passed ex parte when there has no scope for the learned Subordinate Judge to hear the matter on 26 -7 -1988 ex parte after fixing it to be heard on 18 -8 -1988. In case of emergency, the date could have been advanced after notice to the parties Hearing ex parte on 26 -7 -1988 is in violation of the principle of natural justice on the facts and circumstances of this case. Accordingly, the impugned order suffers from material irregularity in exercise of jurisdiction and is liable to be set aside.