Khargeswar Choudhury and Another vs Isfaque Hussain and Others

The factual matrix of this case depicts the callousness and lacklustre attitude on the part of a lawyer conducting in a case. A time has come when some authority must step in and take an appropriate step against such a Lawyer because such a Lawyer is not only a black sheep to this institution but also has caused grave injustice to the litigant public. I do no want to proceed in this matter and I leave it here. This is the preface.

A suit was filed by the opposite party being TS 42/87 before the learned Asstt. District Judge No. 1 at Guwahati against one Ram Chandra Gowala, who was the principle defendant. That suit was contested by the defendant No. 1 by filing written statement and the written statement was file on 5.1.1990. Thereafter the suit proceeded as usual and the plaintiff was examined on 17.3.1992. Learned Lawyer for defendant took time to cross examine the witnesses. In the meantime the sole defendant died on 4.2.1993 due to prolong illness. The fact that he was suffering from various diseases from 1991 it will be evident from documents at 9 series. Be that as it may, thereafter the witness was never cross-examined and Lawyer of the defendant also did not appear in the suit and ultimately this suit was decreed ex-parte on 10.9.1992 vide annexure-10 to this application.

issue No. 7 in the suit reads as follows :

"Whether the plaintiff has got right, title and interest over the suit land and is entitled to vacant possession ?"

The findings arrived at by the learned Judge on issue No. 7 is as follows :

"(7) Issue No. 7: There is sufficient evidence to support right, title and interest of the plaintiff over the suit land. The supporting evidence is that plaintiff acquired the suit land by revenue auction in 1938 and exhibited the relevant Jamabandi vide Ext. 1. He has also been paying land revenue and to support this also exhibited the receipt vide Ext. 2 He has also exhibited the relevant order cancelling the Khatian of the defendant vide Ext. 3 From the evidence on record, it also appears that the defendant was a permissive occupant and subsequently became trespasser and liable to be evicted for giving possession of the suit land. The issue is accordingly decided in favour of the plaintiff."

A bare perusal of Ext. 1 which is available in record will show that by entry this suit land which is the subject-matter was made sarkari as it was found to be celling surplus in Ceiling Case No. 352/75-76 and it was taken off from the settlement granted to the plaintiff. So, definitely on the date of the judgment i.e. on 10.9.1992 the plaintiff did not have any right, title and interest to the land inasmuch as it was sarkari land for all practical purpose and the trial court cannot have the jurisdiction to grant a decree for declaration of right, title and interest in respect of a plot of land which evidently found to be sarkari land on the basis of the entry made in the Jamabandi which was exhibited and produced before him. It is not the fact that this was not brought to the notice of the trial court. It was brought to the notice of the trial court but the trial court ignored/neglect to look to that entry and passed a decree which cannot be passed on the basis of the materials on record and on the basis of this decree as alleged by the defendant in their petition they shall be evicted from the plot of land on which they are in posseston for a period of 50 years. Further this fact of ceiling surplus was highlighted in the written statement in para 6 where in it was stated as follows :

The defendant begs to state that an area of 1 Bigh 2 Lechas of land of Dag No. 174 of KP Patta No. 46 6 has been declared as Ceiling Sarkari and the defendant paid the Touzi Bahira land revenue to the Govt. and also applied for settlement of the land to the Govt."

The law is that even if a decree, is ex-parte that decree must be passed on materials on record and it cannot be decreed on vacuum or against the principle of law. For the present this is with regard to infirmity, illegality and jurisdictional error of the decree.

As indicated above, when this decree was passed ex-parte, the sole defendant was suffering and ultimately he died and as such, the heirs filed an application under O.9 R. 13 to set aside this ex-parte decree on 22.3.1992. Along with that application, no application for condonation of delay was filed though this application was filed beyond the period of 30 days from the date of the decree. That also was because of the fact that the Lawyer did not properly advise the heirs. Thereafter even before the trial court the materials with regard to ailment of the defendant were not produced and the trial court had no option, but it came to a finding that there was no sufficient cause. That judgment is at Annexure-13. The most unfortunate part is that on behalf of defendant no evidence was adduced and the findings of the trial court inter alia are as follows :

"Though the petitioners stated in their petition, that their father was suffering from serious ailment, there is no evidence in support of the said claim. No medical evidence has been adduced to substantiate the claim regarding the ailment."

7, There was another aspect of the matter that the Lawyer himself informed the petitioners that he was not aware of the fate of the case due to wrong insertion of the date. The trial court found fault with the petitioners as there was no corroboration in this regard. But if the Lawyer does not come forward to depose how there can be corroboration. The Lawyer after committing the mistake, he must have the courage to own up the mistake. That will show that this profession is the profession of a noble and honest man with courage and dignity and it is not the profession of a person with callous and lacklustre attitude. A Lawyer also is a human being and nobody is infallible, but when there is a mistake, that mistake should be owned and one should assert that it was due to his mistake. But because of the mistake of the Lawyer, the client should not be made to suffer, but that is what has happened in the case in hand. Ultimately in para 10 it was found by the learned Judge as follows :

"In the circumstances stated above, I find no sufficient evidence to believe that the defendant No. 1 was prevented by sufficient cause from appearing when the suit was called on for hearing, and as such I find no merit in the petition. In the result, the prayer is rejected and the Misc case is dismissed on contest without cost."

As against this, there was an appeal before the District Judge, Kamrup at Guwahati and before the appellate court it was pointed out that an application under O.9, R. 13 is barred by limitation and that aspect also taken into consideration by the appellate court and the learned Judge vide judgment dated 9.2.98 dismissed the appeal which is annexure-15 to the writ application. Thereafter this application has been filed under Article 227 of the Constitution of India to set aside the decree as indicated above as well as to set aside both the judgments arising out of application under O. 9, R. 13 CPC.

I have heard Mr. S P Roy, learned counsel for petitioner and Mr. S. Ali learned counsel for opposite party. Mr. S. All, learned counsel vehemently submits that this application under Article 227 is frivolous one and this court should not entertain this application. Regarding this preliminary objection, he places reliance on three decisions :

Mohd. Yunus Vs. Mohd. Mustaqim and Others, . He relied on para 7 of that judgment and that is quoted below :

''The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited" to seeing that an inferior Court or Tribunal functions within the limits of its authority." And not to correct an ''error apparent on the face of the record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record."

The Supreme Court pointed out that in exercise of the jurisdiction under Article 227 -this Court cannot correct an error of law or an error apparent on the face of the record, but it can look to whether the tribunal functions within the limits of its authority. We looked to that aspect of the matter when we took up discussion of the case.

Laxmikant Revchand Bhojwani and Another Vs. Pratapsing Mohansingh Pardeshi Deceased through his Heirs and Legal Representatives, where in para 9 the law has been laid done as follows :

The High Court under Article 227 of the Constitution of India cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court Interferes."

We will apply this test in determining whether this application under Article 227 should be entertained by this court or not.

Baby Vs. Travancore Devaswom Board and Others, where in para 6 the Supreme Court has pointed out as follows :

"The High Court had still powers under Article 227 of the Constitution of India to quash the orders passed by the tribunals if the findings of fact had been arrived at by non-consideration of the relevant and material documents the consideration of which could have led to an opposite conclusion. This power of the High Court under the Constitution of India is always in addition to the powers of revision u/s 103 of the Act."

This case instead of helping the learned counsel for opposite party, helps the petitioner as the Supreme Court has pointed out that in an appropriate case, in exercise of the power under Article 227 of the Constitution of India, this court can quash the order passed by the tribunal if the findings of fact have been arrived at by non-consideration of the relevant material, the consideration of which could have led to an opposite conclusion.

On the other hand, Mr. S P Roy, learned counsel for petitioner places reliance on the following decisions :

(1992) 2 SCC 143 (Savita Chemicals (P.) Ltd. v. Dyes and Chemicals Workers'' Union, and another) where in para 19 the Supreme Court has pointed out as follows :

"Unless there was a patent error committed by the Labour Court, the High Court under Article 227 could not have interferred with the findings of the Labour Court as if it was hearing an appeal. There cannot be any dispute on the said settled legal position. Under Article 227 of the Constitution of India, the High Court could not have set aside any finding reached by the lower authorities where two views were possible and unless those findings were found to be patently bad and suffering from clear errors of law."

Mohan Amba Prasad Agnihotri and Others Vs. Bhaskar Balwant Aher (D) Through I.Rs., where in para 5 the Supreme Court has pointed out as follows :

"On the first submission of Mr. Lalit, it will suffice to observe that it is settled law that the jurisdiction of the High Court under Article 227 is not appellate but supervisory it cannot interfere with a finding of fact recorded by lower court/tribunal unless there is no evidence to support the finding or the finding is perverse."

Smt. Milan Rani Saha Vs. New India Assurance Company Ltd., Agartala and Others, where in the Full Bench of this court relying on a Supreme Court decision pointed out that for a High Court in India to say that it has no power even to consider the contention that that awards secured are the by products of stark fraud played on a court, the plenary power conferred on the High Court by the Constitution may become a mirage and people''s faith in the efficacy of the High Courts would erode.

Considering the law as indicated above. I held that this application under Article 227 of the Constitution of India is maintainable.

Mr. S P Roy, learned counsel also produces before me a judgment of this court with regard to a suit which was filed by the present plaintiff, nodoubt with regard to different person and there also the same question arose ie whether the land which was claimed by the plaintiff was a patta land or it was celling surplus land and the trial court came to a finding that it is a celling surplus land and the plaintiff has no right to get a decree. There was an appeal being TA 1/97 before the learned District Judge, Kamrup at Guwahati as against the judgment and Decree. That appeal was allowed and the matter was remitted back to the "trial court. As against that, Misc Appeal being Misc. Appeal(s) No. 127/98 was filed before this court and this court in para 8 of the judgment has held as follows :

"After due consideration of the materials available on record. I find no reason to disagree with the conclusion arrived at by the learned trial judge. In my considered opinion also, the plaintiff lost his title over the suit land as far back as in 1976 when the Assam Fixation of Ceiling on Land Holdings Act came into force and, therefore, he has no locus standi to institute the suit for eviction of the defendant. In view of this conclusion, I think it is not" necessary to deal with other issues for the purpose of this case."

The same is the situation in the instant case inasmuch as a bare perusal of the entry in the jamabandi to which reference has already been made, will show that on the date of the decree, the plaintiff had no right, title and interest to the suit land and no decree could have been passed even ex-parte by the trial court on the basis of the materials on record. At this stage, Mr. S. Ali, learned counsel draws my attention to a document which has been annexed as Annesure-B to the affldavit-in-opposition. That letter is dated 3.11.1997 and by that letter nodoubt the learned Deputy Commissioner, Kamrup wrote to the Addl. Deputy Commissioner, Kamrup stating that the suit land is within the retainable area by the plaintiff-landlord and as such the jamabandi should be corrected. Be that as it may, this document was not available before the trial court when the decree was passed. So even on that count also the decree is not maintainable. I hold that in this particular case, there is flagrant violation of principle of justice as a decree was passed without any material and accordingly I quash that decree which is available at Annexure -10 to this application. As the decree itself has been quashed, the question of quashing other two orders ie proceeding arising out of the application filed under O.9, R. 13 does not arise. The matter now shall go back to the trial court to decide the matter afresh in accordance with law. The parties shall appear before the learned Civil Judge (Sr. Divin,) No. 2 at Guwahati in connection with TS 42/87 on 07.05.2001 to receive further instruction in the matter. There will be no need for the trial court to issue notice to the parties as this judgment is passed in presence of the learned counsel of both sides,

This application is allowed to that extent as indicated above. No costs.