Sisir Kanti Nath vs Nani Gopal Goswami

Arindam Lodh, J

Heard Mr. Ratan Datta, learned counsel for the petitioner and Mr. S. Lodh, learned counsel for the respondents.

The respondent herein had instituted a suit for declaration alongwith a prayer for perpetual and temporary injunction. The respondent also filed separate application for granting injunction under XXXIX Rule 1 and 2 of the CPC.

Though the petitioner herein appeared after receipt of notice, but, could not file written objection against the petition for temporary injunction.

From the order dated 22.03.2021 passed by the learned Civil Judge, Junior Division, Dharmanagar, North Tripura, it appears that, the learned court observed that despite several opportunities granted to the defendant, the petitioner herein, he failed to file written objection till that date. Therefore, the learned court rejected the prayer of the petitioner for granting further time, and it was ordered that the case would be heard ex parte, and the next date was fixed on 04.05.2021 for ex parte hearing. Thereafter, from the order dated 10.05.2021, it appears that the petitioner herein had filed written objection alongwith a prayer for accepting the same. The matter was heard on 17.05.2021. After hearing the learned counsel appearing for the parties, the learned Judge had passed the following order:-

"Ld. Advocate Mr. S. C. Deb is present on behalf of the plaintiff-petitioner. Ld. Advocate Mr. Tirthankar Debnath is present on behalf of the defendant-op. Today was fixed for order on the petition under O.IX, R.7 of C.P.C. filed by the defendant-op. Perused the case record. It appears that summons was served upon the defendant-op on 19-12-2020 but till 22-03-2021 no written objection was filed on behalf of defendant-op. On 22-03- 2021 defendant-op prayed for further time of 30-days for filing of WO which was rejected as the statutory time period of 90 days for filing of WO was expired. Vide this petition under O. IX, R.7 of C.P.C. defendant-OP prays to vacate the exparte order passed against them on the ground that they could not obtain necessary documents for preparing the WO as the staff of the Revenue Section were busy in connection with acquisition of land and property regarding National High Way. Heard both the sides. I am of the considered opinion that mere non availability of the document cannot be termed as sufficient cause for the purpose of O.IX, R.7 of C.P.C. More so, defendant-op has not even submitted any documents in proof that they actually applied before the Revenue Authority for any documents required for the purpose of filing of WO. With the aforesaid, the petition filed by defendants Ops is hereby rejected and disposed of. Fix 20-05-2021 for hearing on the petition under O.XXXIX, R.1 & 2."

I have considered the said order dated 17.05.2021, and also the submissions rendered by the learned counsel appearing for the parties before this court.

I do not find any wrong with the order dated 17.05.2021. However, justice is not only to be done, but, it is shown to be done. Since, the petitioner-OP had filed written objection alongwith a prayer for accepting the said written objection and for hearing of the same, in my opinion, an opportunity should be given to the petitioner, who was the original opposite party contesting the petition, and as well as the connected suit.

However, I am inclined to impose cost upon the petitioner. Accordingly, I impose cost of Rs. 5,000/- upon the petitioner which would be paid to the respondent within 7 days from today.

The learned court is directed to hear the matter finally on the next date, if the petitioner makes payment of the said cost to the respondent within the stipulated period of 7 (seven) days.

Accordingly, the order dated 17.05.2021 is set aside, and the impugned order dated 22.03.2021 stands modified to the extent as indicated above.

The instant writ petition, thus stands, disposed.

Pending application(s), if any, also stands disposed of.