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Judgment
Heard Mr. A. Iqbal, learned counsel appearing for the petitioners. Also heard Mr. A. Sancheti, learned counsel appearing for the respondents.
This application under Article 227 of the Constitution of India, read with Section 151 CPC is filed against the order dated 07.08.2017, passed by the
learned Civil Judge No. 1, Kamrup (Metro), Guwahati, in Misc (J) Case No. 247/14 arising out of Misc. (J) Case No. 23/12, in Title Execution Case
No. 3/09, pending in the court of learned Civil Judge No. 1, Kamrup (Metro), Guwahati.
The plaintiffs/respondents instituted a title suit, being T.S. 79/86, in the court of the learned Civil Judge No. 1, Kamrup (Metro), Guwahati. By a
judgement and order dated 09.07.2003, passed by the learned Civil Judge No. 1, Kamrup (Metro), Guwahati, the suit was decreed. The predecessor-
in-interest of the present petitioners, who are substituted during the pendency of this Civil Revision Petition, had filed an application on 06.06.2012
under Order XXI Rule 97, 99 read with Rule 101 and 105 CPC, and the said application was registered as Misc. (J) Case No. 23/12. The said
application, i.e. Misc. (J) Case No. 23/12 was dismissed for default by an order dated 10.06.2014. It is to be noted, at this point, that the plaintiffs had
started an execution case, being Title Execution Case No. 3/09, which is pending in the court of the learned Civil Judge No. 1, Kamrup (Metro),
Guwahati. After dismissal of Misc. (J) Case No. 23/12 because of default, a petition, being Petition No. 1540/2015, under Order IX Rule 4 read with
Section 151 CPC was filed by the conducting counsel praying for restoration of Misc. (J) Case No. 23/12 and the said application was registered as
Misc. (J) Case No. 247/14. The application was rejected by an order dated 14.11.2014 and, challenging the said order dated 14.11.2014, a civil
revision petition, being CRP No. 62/15 was filed before this court and the same was allowed by setting the order dated 14.11.2014 with certain
directions and observations. This court held that Misc. (J) Case No. 247/14 had been rejected without considering the application on merit only on the
ground of unsatisfactory conduct of the petitioner. This court observed as under:
 “9. This Court, upon consideration of the arguments advanced by the learned counsel for the parties, is of the view that the learned trial court did
not dismiss the Misc.(J) Case No.247/2014 on the ground of it being deficient in the manner the petition was verified and/or for the deficiency that the
said petition was not supported by an affidavit, nor, the learned trial court below had decided the merit of the petition presented by the petitioner herein
under Order IX Rule 4 read with Section 151 of CPC. As it could be evident from the impugned order extracted above, that the learned court below
had merely referred to the conduct of the party in Misc.(J) Case No.23/2012 and found the conduct of the petitioner herein not to be satisfactory. In
this regard, this Court is of the view that the learned court below had failed to exercise its jurisdiction vested in it by not deciding the Misc. (J) Case
No.247/2014 on merit.
In the opinion of this Court, the learned court below was required to answer the issues raised in the said application, on its own merit, de-hors the
conduct of the petitioner in Misc. (J) Case No.23/2012 as because it is evident that in view of not taking steps in the said application, the Misc.(J)
Case No.23/2 012 was dismissed by the order dated 10.06.2014. Therefore, the learned court below was required to go into the merit of the
restoration application. It is observed that the Misc. (J) Case No. 23/2012 was dismissed on 10.06.2014 and the restoration application was filed on
19.06.2014, which was well within the prescribed period of limitation.
As regards the case of Muktinath Das (supra) relied upon the learned counsel for the respondent, this Court finds that in the said cited case, the
affidavit was verified carelessly and on that ground, this Court had upheld the order passed by the learned court below rejecting the application for
condonation of delay. In the opinion of this Court, had the Misc.(J) Case No.247/2014 been rejected on its merit then the ratio of case of Muktinath
Das (supra) would have come to the aid of the respondent.â€
Thereafter, by the impugned order dated 07.08.2017, Misc. (J) Case No. 247/2014 came to be dismissed. It was observed as follows: “I have
considered the above mentioned points. As quoting of wrong provision is not fatal to the prayer of an applicant, I am not inclined to pass any order
against this petition on the point of mentioning of any provision on it. However taking into consideration of the objection raised by the other side, I am
inclined to scrutinize this aspect. In this case the petition is supported by a verification by the Ld. Counsel of the petitioner. Order 6 rule 15(4) CPC
clarifies that the person verifying the pleading shall also to furnish an affidavit in support of his pleading. In M/s Mango Ice Cream Co. v/s Dena bank.
1992 1 GLR 143, the Hon’ble Gauhati High Court observed that rule 16 of chapter 1 of Civil rules and orders of the High Court requires that:
‘All petitioners requiring judicial investigation or determination unless filed with an affidavit in support thereof should be verified in the manner
prescribed by Or. 6, r. 15.’ The Ld. Counsel appearing on behalf of the opposite party placed his reliance in Mukti Nath Das’s case (AIR
1990 Gauhati 10) where the Hon’ble Gauhati High Court observed that ‘In Government of Andhra Pradesh vs. Prakash Rao (1982) 2 SCC 385,
the Supreme Court rejected the prayer for condoning the delay as the person responsible for the delay did not put in any affidavit to support the
allegations made in the petition for condoning the delay. I have also perused the judgement relied by the opposite party. Considering the position that
the statement about inserting of the wrong dates in the diary of the Ld. Counsel, leading the dismissal of the suit has not been supported by any
affidavit, as required under Order 6 rule 15, the averment made in the petition No. 1540/15 cannot be accepted, accordingly this Misc. case is
dismissed.â€
Mr. Iqbal submits that the petition was duly verified and, having regard to the fact that this court required the learned trial court to decide the
petition on merit, an opportunity ought to have been granted to support the petition by an affidavit, which was not done in the instant case by the
learned trial court. He, accordingly, submits that by setting aside the impugned order, an opportunity may be granted to the petitioners to file an
affidavit in support of the Petition No. 1540/2015. He has drawn the attention of the court to Clause 16 of the Civil Court Rules and Orders of the
Gauhati high Court and the judgement of this court in the case of Oriental Bank of Commerce vs. Queens Palace and Anr. , reported in (2007) 2 GLR
21, Assam Ashok Hotel Corporation Ltd. vs. North East Chamber of Commerce & Industry and Ors., reported in 2016 (4) GLR 532 as well as a
judgement of the Punjab and Haryana High Court in the case of Sohan Lal vs. Uttam Singh, reported in (2004) 138 PLR 507.
Mr. Sancheti, on the other hand, has submitted that in view of Order VI Rule 15(4) CPC, it is mandatory to submit an affidavit whenever a petition
is supported by verification and despite opportunity being granted by this court in CRP 62/15, where this aspect of the matter, namely, non-filing of
affidavit was taken note of, the petitioners did not take any steps whatsoever and, therefore, at this distance of time granting of opportunity to cure the
defect of not filing affidavit does not arise, more so, in view of the fact that the suit was of the year 1986 in which the decree came to be passed by
the learned trial court in the year 2003. Learned counsel submits that the averments made in the petition No. 1540/15, based on which restoration was
sought for, were specifically denied in the objection filed and, in the aforesaid context, absence of an affidavit goes to the root of the matter and,
therefore, the learned trial court was within its jurisdiction to consider that aspect of the matter as an intrinsic part in the process of adjudication of the
petition on merit. Learned counsel has relied upon the decisions of the Supreme Court in the cases of Government of Andhra Pradesh vs. Y.S.
Parkashrao and Another, reported in (1982) 2 SCC 385, Amar Singh vs. Union of India and Others, reported in (2011) 7 SCC 69 and Suman Baby
Jaiswal (M/s) vs. Bharati Infratel Ltd., reported in 2018 (1) GLT 157 and Muktinath Das vs. Smt. Brinda Das, reported in AIR 1990 Gau 10.
 7. Before proceeding further, it needs to be noted that in paragraph 3 of the Petition No. 1540/15, it was stated that there was an inadvertent
mistake on the part of the counsel in not inserting the next date fixed, i.e., 10.06.2014, in his diary and, therefore, he could not appear before the court
to take appropriate steps as a consequence of which the petition came to be dismissed and this fact came to his knowledge only when he came to
collect the date of the case on 18.06.2014.
It is also noticed that the said petition was filed by the counsel on that very day itself, i.e., 18.06.2014. In the verification part of the said petition, it is
stated that the statements made in paragraphs 1 to 6 (there are six paragraphs in the petition) are true to his knowledge and belief. In the objection
that was filed, averments made in paragraphs 3 and 4 in the said petition were denied and it was averred that such a petition was filed only to delay
the disposal of the Execution Case.
A perusal of the judgement dated 30.05.2017, passed in CRP 62/15, would go to show that contention was advanced by the learned counsel
appearing for the respondents therein that Misc. Case (J) No. 247/14 was not maintainable because the petition was not filed by the petitioner himself
but by his counsel and also on the ground that the same was not supported by an affidavit. Reliance was placed in Order VI Rule 15 (4) CPC to
contend that such applications are required to be supported not only by verification but also by an affidavit. However, this court did not express any
opinion on such submission as the Misc. Case (J) No. 247/14 was not dismissed on the ground of it being deficient due to improper verification and/or
being not supported by an affidavit. As noticed earlier, the learned trial court had rejected the said petition solely on the count that the past conduct of
the petitioner was not satisfactory and, accordingly, a direction was issued to the learned trial court to decide the petition on merit.
Whether or not the consideration bestowed by the court to the deficiency in a petition would come within the compass and ambit of the word
“meritâ€, in the context of the case, may not detain the court in view of the observations made by the court on the earlier occasion, more
particularly, at paragraph 11. It was observed that if Misc. (J) Case No. 247/14 had been rejected on its merit then the ratio of Muktinath Das (supra)
would have come to the aid of the respondents. In Muktinath Das (supra), an application for condonation of delay, supported by an affidavit but
verified in a careless manner without disclosing the source of information, was filed. That apart, the persons responsible for causing the delay had not
filed the affidavit. In the above background, this court had upheld the order of the learned trial court dismissing the application for condonation of
delay. Viewed in that context, consideration as regards maintainability of the petition would also be a part of consideration on merit.
Order VI Rule 15(4) CPC was inserted by way of amendment with effect from 01.07.2002. Order VI Rule 15 (4) CPC provides that the person
verifying the pleadings shall furnish an affidavit in support of his pleadings. Clause 16 of the Civil Rules and Orders of the Gauhati High Court provides
that a petition requiring judicial investigation or determination, unless filed with an affidavit in support thereof, should be verified in the manner
prescribed by Order VI Rule 15.
In Government of Andhra Pradesh (supra), this court had held that a petition is not to be dismissed or rejected for defect in verification or affidavit
without giving opportunity to rectify the same. The same view was taken in Assam Ashok Hotel Corporation Ltd. (supra), wherein this court stated
that the defects in signing or verifying are curable and the court is supposed to give scope to the party to cure the defect and if, even after giving
scope to cure the defect the same is not rectified or cured, then it would be a different proposition altogether. In Sohan Lal (supra), the Punjab and
Haryana High Court stated, in the context of the Rent Control Act, that verification, as required by Order VI Rule 15 would be almost equivalent to
filing an affidavit.
What emerges from the above is that if a petition is defective on account of deficiency in verification or affidavit, an opportunity ought to be
granted to rectify the defect.
In Government of Andhra Pradesh (supra), the Supreme Court dismissed the Special Leave Petition which was time-barred by 69 days as no
attempt was made by the appellants to put in affidavit of the officer concerned. In Amar Singh (supra), the Supreme Court emphasized the importance
of affidavit and highlighted that the same should be strictly in conformity with the requirements of Order XIX Rule 3 CPC.
Mr. Sancheti has sought to persuade the court by his contention that the respondents in the earlier round of litigation had put the petitioners on
notice about the deficiency in the Petition No. 1540/15 and, yet, even after the matter was remanded back, although they had ample opportunity, no
attempt was made by them to cure the defect and, juxtaposed thus, it cannot be said that the petitioners did not have an opportunity to cure the defect.
I am not persuaded to accept and subscribe to the aforesaid submission. Submissions advanced during the proceeding cannot be equated with
grant of an opportunity. The court is not oblivious of the fact that after a hard-fought litigation spanning almost two decades, decree was obtained by
the plaintiffs. But the court has to strive for rendering justice and, in the facts and circumstance of the case, I am of the opinion that an opportunity
needs to be given to the petitioners to submit an affidavit in support of the petition on or before 10.04.2018.
Taking the above view, this revision petition is allowed with a cost of Rs. 20,000.00. Unless the cost is deposited on or before 10.04.2018, there
will be no further requirement for the learned court below to adjudicate Misc. (J) Case No. 247/14. In other words, depositing the cost of Rs.
20,000.00 is made a condition precedent for entertainment and adjudication of Misc. (J) Case No. 247/14.
The parties to the proceeding will appear before the learned trial court on 10.04.2018 and Misc. (J) Case No. 247/14, shall be decided subject to
deposit of the cost, by the learned trial court, without fail, within a period of one month there from.
With the above observations and directions, the revision petition stands disposed of.