GREEN VALLEY CLUB Vs. MOILAPATHAR BAZAR

JUDGEMENT

(1.) Heard Mr. A R Sikdar, learned counsel for the petitioner. Also heard Mr. MU Mahmud, learned counsel for the respondents.

(2.) Order dated 04.03.2015 passed by the learned court of Munsiff No. 1, Goalpara in Misc. (J) Case No. 59/2014 arising out of T.S. No. 70/2012 is put under challenge in this revision petition. T.S. No. 70/2012 was filed by the plaintiffs respondents against the defendant petitioner. The suit was dismissed for default on 26.11.2012. The same was restored vide order dated 13.3.2013. On 21.05.2013 the defendant petitioner did not take any step for which the suit proceeded ex-parte. Next date was fixed on 11.06.2013 for production of documents and issues. On 11.06.2013 next date was fixed on 16.07.2013 and thereafter the suit was fixed on 26.08.2013. Subsequent dates were fixed on 01.10.2013, 04.12.2013, 11.01.2014, 25.02.2014, 24.03.2014, 04.06.2014 and on 05.08.2014. On the said dates so fixed the conducting counsel on behalf of the defendant petitioner shown his presence by way of "Hajira" indicating even that list of witnesses was submitted earlier. On 05.08.2014 the defendant petitioner through one Gajibur Rahman filed an application under Order 9 Rule 7 of the CPC for vacating the ex-parte order passed on 21.05.2013. In the said application it was stated that the date fixed on 21.05.2013 and the fact of restoration of the suit on 13.03.2013 was beyond the knowledge of the learned counsel. It came to the knowledge on 05.08.2014 on which date the said petition under Order 9 Rule 7 of the CPC was filed. The plaintiff respondent filed his written objection raising the plea that petition is barred by law of limitation and further disputing that neither the suit was fixed on 26.05.2013 nor any order passed on 26.05.2013 as stated in the said petition under Order 9 Rule 7 of the CPC. The learned court below vide impugned order dated 04.03.2015 held that the petition was barred by limitation thereby dismissing the said application.

(3.) Mr. Sikdar submits that the fact of limitation will not come inasmuch as it is from the date of knowledge of the defendant petitioner No. 1 who filed the application for setting aside the order when it came to the knowledge of the defendant No. 1. In support of his contention he relies on C.L. Cleetus V. South Indian Bank Ltd. and Anr . reported in AIR 2007 KERALA 301 and submits further that as there is no provision in the Limitation Act providing any specific period of limitation for an application under Order 9 Rule 7 of the CPC, such application would be covered under Article 137, the residuary article which prescribed a period of three years. It is further submitted that there was clear negligence on the part of the conducting counsel as he was filing his attendance all throughout even after the order of ex-parte without making an effort to set aside the order passed on 21.05.2013. For the said negligence on the part of the conducting counsel the defendant petitioner should not suffer and in support of his contention he relies on Rafiq and Another Vs. Munshilal and Another reported in (1981) 2 SCC 788.