KESHAB LAL BHUIYA AND ANR. Vs. ATAUR RAHMAN

JUDGEMENT

(1.) THIS application under Section 115 of the Code of Civil Procedure is directed against an order passed by the learned Munsiff, Tinsukla setting aside the, exparte decree passed in Title Suit No. 115/73. The judgment is not only replete with findings based on surmises and conjecture's which has resulted in an irregular exercise of jurisdiction by the Court but also manifests a total misconception by the Court of its powers under Order 9 Rule 13. At one stage I was inclined to accept the prayer of Mr. G.K. Talukdar, learned Counsel appearing for the Defendant -Opposite party to remand the case for a proper finding having due regard to the relevant provisions of law, but I find that the suit has been pending disposal for nearly ten years and for the ends of justice it will not be proper to remand it unless I am satisfied that it will serve any useful purpose. In the instant case a remand would not be of any help as the evidence of the Defendant, on whom Mr. Talukdar relies, but which the learned Munsiff has not discussed, would not improve the case of the Defendant.

(2.) THE case of the Defendant -opposite party is that he had got an injury on his leg in the later part of Nov/76 and was hospitalised for about a month. He has further stated in his petition under Order 9 Rule 13 that he came to know about the exparte decree on 28.2.77. The suit was fixed for hearing on 18.1.77 and in the absence of the Defendant -opposite party it was decreed exparte. The Defendant -opposite party filed the application on 8.3.77 for setting "aside the exparte decree. No separate application under Section 5 of the Limitation Act was filed and the delay in filing the application on 8.3.77 under Order 9 Rule 13 has not been explained otherwise in any manner although under Article 123 of the limitation Act the Defendant -opposite party was required to file the application on 17.2.77. The jurisdiction to set aside an exparte decree under Order 9 Rule 13 is circumscribed by the provisions thereof and the Court has no power to override the provisions. A plain reading of the provision suggests that it demands strict compliance by the party invoking the jurisdiction of the Court thereunder. The reason is very simple as can be gathered from the scheme of the Code. Procedures for the progress of litigation are so prescribed that no party shall have an unfair advantage over the other and the machinery of justice once set in motion shall continue its course as charted by the provisions of the Code. Those who submit to the jurisdiction of the Court must assist the Court to dispense justice according to law. Any unfair advantage extracted from perverting the provisions will obviously result in the course of justice being obstructed. The Code enjoins a duty upon the Court to ensure that no brake is applied unfairly to slow down the motion of justice which must keep its pace and deal parties evenly.

(3.) IN this case it appears that the Defendant -opposite party has not made out a case for the "satisfaction" of the Court to invoke its jurisdiction under Order 9 Rule 13. In the application, under Order 9 Rule 13 the Defendant -opposite party has made a general statement to explain why and how he was prevented from filing the application only until 28.2.77 and no cause, moreover, has been shown as respects the specific date, namely, 18.1.77. Even in his evidence to which my attention was drawn by Mr. Talukdar, learned Counsel for the Defendant, opposite party. I find that he has explained the period of his inaction generally only until 28.2.77 and no care is taken to explain why the application was filed on 8.3.77. Although no application under Section 5 of the Limitation Act has been filed in this case this Court would have considered if reasonable and satisfactory explanation was given for the entire period, i.e. from the date of passing of the decree, namely, 18.1.77 to the date of filing of the of the application for setting aside the exparte decree, namely, 8.3.77.