STATE Vs. BASANTA

JUDGEMENT

(1.) This is an appeal directed against the judgement and decree dated 12-4-83 and 18-5-84 passed by the Assistant District Judge, Tezpur in Money Suit No. 14 of 1980. The appellants question the validity of the impugned order rendered by the Court under O.VIII, R.10 of the Civil P.C., for short "the Code". However, the main question in the appeal is whether on the facts and circumstances of the case the court was legally justified in proceeding to pronounce the judgement and decree against the defendants for their inability to file written statement on just and sufficient ground.

(2.) The relevant facts are that the plaintiffs instituted a suit for recovery of Rs. 2,04,100.00 claiming damage or compensation for malicious prosecution against the State of Assam, defendant No. 1 and four police Officers, defendants 2 to 4 and Smt. Meena Devi Chandak, defendant No. 5. The plaintiffs claim that they had civil litigations against Smt. Meena Devi Chandak and during the continuance of the litigations on 14-8-78 defendant No. 5 lodged an ajahar with the police alleging offence under Ss.147, 447, 506, 323, 427 and 379, I.P.C. The defendants police officers were responsible for the arrest of two out of three plaintiffs and seized some properties in connection with the criminal case. The other plaintiff however obtained anticipatory bail. Although the allegations were false the officer-in-charge of the police station submitted charge-sheet against the plaintiffs. Later, the plaintiffs were discharged by the Magistrate as there was no material against them. The entire episode, including the arrest of the plaintiffs and seizure of their properties, created sensation in town and in consequence of the arrest the accused were under great mental and physical pain and damaged their reputation. It was alleged that all the police officers colluded with Meena Devi Chandak, defendant No. 5. The State was made party-defendant as the police officers were working for gain under them. On receipt of the summons the State of Assam and the police officers appeared through the Government Advocate and prayed for time to file written statement. Thereafter, it appears that the Government pleader who appeared on behalf of the State and the Police Officers, continuously prayed for time. On some occasions, due to Bundhs or hartals court could not function and adjournments has to be given. The police officers were the then Superintendent of Police, the then Deputy Superintendent of Police and one Inspector of Police. In the course of the proceedings the plaintiffs also failed to take steps to summon defendant No. 5 Smt. Meena Devi Chandak. The prayers for adjournment made by the Government Advocate were on the ground inter alia, that he did not receive necessary instructions from the Government and the Police Officers and that the term of his appointment had expired and new appointment was awaited. However, the main ground was that he did not receive appropriate instruction, paper and documents from the Government and the police officers and accordingly be could not prepare and file the written statement. Considering the merits of the applications the trial Court granted time to the defendants. On 8-4-83 the Government Advocate filed an application praying for further time stating that the State Government and the Police Officers were busy in view of the turbulent law and order situation and on that count the written statement on behalf of the defendants could not be prepared and filed. Learned Judge posted the matter for rendering order on the application 12-4-83. On 12-4-83 records were put up before the learned Judge. However, at first, learned Judge considered the effect of failure of the plaintiffs to take steps to re-summon defendant No. 5, Smt. Meena Devi Chandak. Learned Judge held that the plaintiffs had failed to take steps against defendant No. 5 and her name was struck off under O.9, R.5 of "the Code". In consequence of the said order, passed under R.5 of O.9 "the Code", the suit against defendant No. 5 stood dismissed. Simultaneously, learned Judge took up the application for consideration the application for adjournment and held that the suit was pending since 1981 and several adjournments had been granted to defendants 1 to 4 for filing the written statement. Even last chance had been given to the defendants but they did not file the written statement, and, accordingly rejected the prayer for adjournment and proceeded to pronounce judgement in exercise of his power under O.8, R.10 of "the Code". Thereafter considering the averments contained in the plaint and documents filed learned Judge decreed the suit against all the defendants for 2 lakhs making of them jointly and severally liable and allowed the claim of the plaintiffs. Learned Judge held that the plaintiffs had established a prima facie case against the defendants who had not contested the claim. In short, learned Judge decreed the suit against all the defendants including Meena Devi Chandak, defendant No. 5. The decree clearly shows that it was a decree against defendant No. 5, Meena Devi Chandak as well. Admittedly, no decree could have been passed against Meena Devi Chandak as the suit against her had been dismissed. It also appears that learned Judge failed to consider the effect of the dismissal of the suit against defendant No. 5, Meena Devi Chandak, a necessary party to the suit and its effect on the traits of the claim of the plaintiffs.

(3.) However, we leave the matter out of consideration in view of submission made by Mr. B. Sarma, learned counsel for the plaintiff-respondents that the order dismissing the suit against defendant No. 5, Meena Devi was violative of the principles of natural justice as it was rendered without giving the plaintiffs any opportunity at all. We shall consider the submission in due course.