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Judgment
Re: C.A.N. 11400 of 2017
Because of the on going cease work at the Bar, learned Advocates engaged by the parties are not available and the parties are allowed to appear in
person.
The appellant no.1, the Director, West Bengal Fire Services being absent in office, the Deputy Director of West Bengal Fire Services is allowed to
place the application.
This is an application for restoration of the second appeal being S.A. 461 of 2008. By this application, the appellants have prayed for recalling of the
order of dismissal passed on November 9, 2017 by which the appeal stood dismissed for default. The application has been filed on December 4,
2017 which is within the period of limitation. In the application, it has been stated that the learned Advocate who was engaged on behalf of the
appellants to argue the matter, was engaged in another Court at the relevant time on November 9, 2017 when the matter was dismissed for default.Â
It has been submitted that on the very next day, i.e., November 10, 2017 the learned Advocate for the appellants drafted the restoration application
and the same was affirmed on November 30, 2017. The appellant submits that there was no deliberate laches on the part of the learned Advocate
engaged on their behalf to appear before the Court when the matter was called on and the appeal should be restored.
The respondent, Mr. Shyam Sundar Kalra appears in person and makes oral objection to the application being allowed. Today when the matter was
taken up in the morning, inasmuch as from the record it appeared that no copy of the restoration application was served earlier by the learned
Advocate for the appellant upon the respondent, a copy of the application for restoration was directed to be served upon Mr. Kalra appearing in
person for the respondent. Copy of the application for restoration was received by Mr. Kalra in the morning and he was given time to go through
the said application and the matter has been taken up at 2:00 p.m. in presence of the parties.
Mr. Kalra submits that the appellants are delaying the hearing of the appeal and the laches are willful. Therefore, he submits that the appeal should
not be restored. However, he submits that there is no need to file any written objection to the application but the appeal should be heard
expeditiously. In this connection he relied on the principles laid down in the case of M/s. Atma Ram Properties (P) Ltd. vs. M/s. Federal Motors Pvt.
Ltd. reported in AIR 2005 SC 2457 as decided by the Hon’ble Apex Court on December 10, 2004.
Record reveals that subsequent to the order of dismissal on two occasions the application being C.A.N. 11400 of 2017 praying for restoration was
called on. On February 1, 2018 when the matter was taken up, on the prayer for the learned Advocate for the appellants the matter was adjourned.
On the next occasion, i.e., on February 8, 2018 when the matter was again called on, no one appeared for the appellants on that day. As a result,
the matter was directed to go out of list.
During the ongoing cease work, this matter was mentioned by the Deputy Director, West Bengal Fire Services in absence of the Director in the office
of the West Bengal Fire Services and at his instance, the matter was brought in the list. It appears that after the appeal was dismissed, the matter
was mentioned before the execution court by the decreeholder and by Order No.65 dated March 21, 2018, the Executing Court after hearing an
application under Rule 208 of Civil Rules and Orders passed some orders regarding police assistance. A copy of the Order No.66 dated March 26,
2018 has been handed up before this Court which shows that the matter is fixed before the Executing Court on April 9, 2018 for payment and hearing
over the petition filed by the judgment debtor on March 26, 2018. The said order dated March 26, 2018 reveals that police cost has been assessed
as Rs.25, 618/- and the decree-holder has been directed to deposit the said sum and to file the challan for further order. Accordingly, the matter has
been fixed by the Executing Court on April 9, 2018.
Record reveals that initially when the appeal was admitted under Order 41 Rule 11 of the C.P.C. an order of stay was granted after hearing the
caveator/respondent. The Hon’ble Appeal Court directed stay on all further proceeding in Title Execution Case No.20 of 2004 pending in the
Court of Civil Judge, Junior Division, First Court, Howrah, on condition that the appellants would go on depositing an amount equivalent to the rent with
the executing court every month within 15th of the month next following. First of such deposit for the month of June, 2005 was directed to be
deposited by 15th July, 2005. The appellants were also directed to pay all arrears of rent, if any, within 15th of July, 2005 before executing court. In
terms of the said order dated June 8, 2005, lower court records have also been brought before this Court.
So far as the application for restoration is concerned, since the respondent appearing in person does not wish to file any objection, this Court is inclined
to allow the application for restoration. Â Accordingly, the application filed by the appellant is allowed and the appeal stands re-admitted under Order
41 Rule 11 of the C.P.C.
Accordingly, the order dated November 9, 2017 is recalled and the appeal being S.A. 461 of 2008 is restored to its original file and number.
The application for restoration being C.A.N. 11400 of 2017 is, thus, disposed of.
Having regard to the urgency involved in the matter and the prejudice that the appellants may suffer ultimately during the pendency of the appeal, this
Court is also inclined to re-impose the order of stay which was initially granted on June 8, 2005 for a limited period, i.e., till April 30, 2018 with liberty
to pray for extension and this interim order is passed, however, subject to payment of a cost of Rs.17,000/- (Rupees Seventeen Thousand only) to be
paid by the appellants within a week to the respondent by an account payee cheque.
In view of the submission made by the respondent that the interim relief regarding payment of occupation charge in favour of the respondent decree-
holder, no consideration can be made today in absence of any application to that effect and for that purpose leave is granted to the respondent to make
an appropriate application and if the said application is filed, that will be considered in due course. It is submitted by the respondent that the paper
book has already been filed and copies thereof have also been served upon the
appellants and in that view of the matter, the appeal is treated as ready for hearing and the same may be listed on April 30, 2018 for final hearing
subject to hearing of any application, if filed by the respondent.
It is also made clear that the Court is not inclined to make any further adjournment in future unnecessarily.