MOINUL ISLAM Vs. NABIN CHANDRA SARKAR

JUDGEMENT

(1.) This revision petition under Section 115 CPC is directed against the order Dt. 27.3.90, CPC rejecting the petitioner (s) prayer for adjournment (Annexure-5), passed by Sadar Munsiff No. 1, Dibrugarh in Misc. (J) Case No. 9/82, which in turn arise out of Title Suit No. 216/68. This revision petition is closely interlinked with Civil Revision No. 93/90, arising out of order dated 29.1.90 passed by the same Sadar Munsiff No. 1, Dibrugarh in Misc. (J) Case No. 48/85, arising out of T.S. 121/82. So far as Civil Revision No. 148/90 is concerned, although it purports to have been directed against the order rejecting petitioner (s) prayer for adjournment, it is in reality against the dismissal of the Misc. (J) Case No. 5/87 and Misc. (J) Case No. 9/82, which resulted in dismissal. The Misc. Case No. 9 (J)/82 was fixed for evidence. It was nothing but an application under Order 9 Rule 13, read with Section 151 CPC, praying for setting aside an ex-pane decree dated 29.7.70 passed in Title Suit No. 216/68. It was this application which was registered as Misc. (J) Case No. 9/82. Too obviously the impugned order dated 27.3.90 is an appellable one. Order 43 Rule 1 (d) clearly provides for an appeal against such order dismissing an application for setting aside ex-parte decree. When at the very outset learned counsel for the petitioner was asked as to what prevented him from preferring an appeal, he was at pains to explain the unusual course adopted by the petitioner but submitted that the petition has been pending for more than 6 years, that too with an adJ-interim order arresting and staying the operation of the impugned order dt. 27.3.90 as passed on 28.5.90. It would not serve any useful purpose in dismissing the petition on a technical ground of maintainability. It is a delicate irony of the fate of judicial proceedings wherein mere refusal to grant further adjournment in Misc. Case pending over 8 years for recording of evidence, should be made a ground of attack in a Civil revision petition, u/s 115 CPC, which essentially relates to jurisdictional errors or material irregularities resulting in gross miscarriage of justice. The invoking of revisional jurisdiction of this Court by the petitioner, where a statutory right of appeal was available was nothing sort of an abuse of the Court. I have no doubt in my mind that the petition should have been thrown out at the very threashold as the petitioner had a right of appeal and there is no whisper in the petition as to why he could not avail of it, nor is the counsel in a position even at this stage to explain this omission.

(2.) But for the fact, that there is a connected revision petition, arising out of and relating to the same Title Suit and similar judicial proceedings, seeking cancellation of decree passed both these revision petitions, have been heard together and are being disposed of by a common order. It may be noted that in the course of long drawn proceedings expanding over a period of almost 28 years, three proceedings have seen many ups and downs, parties have gone right up to the Supreme Court.

(3.) Few basic facts so far as they are essential for disposal of these petitions may now be noted.