REGIONAL MANAGER Vs. ABDUL HAMID GUROO

JUDGEMENT

(1.) Petitioners, functionaries of Central Bank of India, defendants in the Civil Original Suit (hereinafter defendant-Bank) having occupied the premises situated at S. R. Gunj Srinagar belonging to the respondents, plaintiff in the suit (hereinafter plaintiff-respondent) on monthly rental, are alleged to have on the one hand retained the premises for use and occupation, subsequent to the termination of the lease and on the other, failed to pay the rent, thereby giving rise to a civil dispute, consequently, a suit for recovery of Rs. 5,06,850.00 (rupees five lac six thousand eight hundred and fifty). The suit was filed on 3-7-1992 in this wing of the High Court which was transferred to the Court of learned District Judge, Srinagar, for disposal in accordance with law by order dated 26-10-1995 which culminated in an ex parte decree. Being aggrieved, the ex parte decree was sought to be set aside through an application filed on 18-7- 1996. Application was allowed by judgment dated 19-8-1997 subject to payment of costs to the tune of Rs. 500/- besides. Rs. 1100/- imposed as costs on an earlier occasion by this Court upon he defendant-Bank vide order dated 26-10-1995 totalling to Rs. 1600/-. Costs were not paid within the period stipulated. Consequent upon such failure, the application was dismissed on 9-9- 1997 in default of payment of costs. The said order was sought to be received on the ground that defendant-Bank was not given notice of the date fixed for judgment. The contention is vehemently controverted by learned counsel for the plaintiff-respondents.

(2.) The case has a chequered history. The plaintiff-respondents filed the suit in the High Court on 3-7-1992 when the District Courts had limited pecuniary jurisdiction. Defendant-Bank was put on notice but chose not to appear despite service, consequently, set ex parte on 1-9-1993. The plain tiffs-respondents were directed on 7-10- 1993 to adduce evidence. Evidence was produced and recorded but judgment could not be pronounced because in the meantime an application was filed on 11-7-1994 for setting aside the ex parte proceedings. In between one of the CMPs filed by defendant- Bank was dismissed by the Court for want, of prosecution. It was sought to be restored by an application bearing No. 133/94. Application was allowed and CMP restored by order dated 5-5-1995 subject to payment of costs of Rs. 300/-. Application filed on 11-7-1994 for setting aside the ex parte proceedings was allowed by order dated 26-10- 1995 subject to payment of costs of Rs. 1100/- and the case was transferred to the District Court Srinagar for disposal in accordance with law. Costs were not deposited, as a consequence thereto the learned District Judge vide his order dated 6-3-1996 maintaining the ex parte proceedings against the defendant-Bank, heard the arguments finally in ex parte on 4-5-1996 and decreed the suit on 5-6-1996. Thereafter the suit entered into a decisive phase when the defendant-Bank filed an application on 18-7- 1996 seeking reversal of the decree. Application was allowed on 19-8-1997 subject to payment of costs of Rs. 500/- to be paid before 6-9-1997. Costs were not paid, obviously, the decree remained unaltered, consequently a review petition was filed on 25-9-1997 which came to be disallowed by order dated 30-12-1997, resultantly, this revision petition.

(3.) The objection to the maintainability of Review petition is raised by learned counsel for the plaintiffs-respondents simply to be rejected, for, law is no more res integra that when a party is aggrieved of an order on the ground that Court has not recorded the order correctly, the remedy to the aggrieved person is to seek review of the order before the Judge who has passed the order, thus recourse to remedy of review being permissible the objection cannot sustain, immaterial whether the defendant-Bank has a case for review or not, that depends on merits of the matter to be gone into. To succeed in the petition one of the grounds urged in the review petition is that Mr. N. A. Khan Advocate had no power to represent the Bank. The facts of this case are near similar to the facts of a case decided by the Supreme Court titled Smt. Padmavati Devadatta Kamat v. Shri Vijaykumar Narayan Mehandale, AIR 2002 SC 1262. How the Court has dealt with the issue, relevant portion of the judgment may be extracted :