Swaraj Nandy vs Atanu Das & Anr

Biswajit Basu, J

The service of notice of the revisional application was effected upon the opposite parties but to give them a further chance to contest the present revisional application, by the order dated September 05, 2019, Mr. De, learned advocate appearing on behalf of the petitioner was directed to serve a notice upon the learned advocate representing the opposite parties in the Court below communicating the date of hearing of the present revisional application.

Mr. De informs this Court that September 20, 2019 was a date fixed before the learned Trial Court for hearing of the suit and an attempt was made on the said date to serve the said notice, but none appeared on behalf of the opposite parties before the learned Trial Judge on the said date, as such the said notice could not be served upon the said learned advocate of the opposite parties.

The revisional application under Article 227 of the Constitution of India is at the instance of the plaintiff in a suit inter alia for a decree of declaration that the sale deed dated March 02, 2015 is null and void and not binding upon the plaintiff and is directed against the order dated March 31, 2017 passed by the 1st Court of the learned Civil Judge (Junior Division), Serampore, Hooghly in Title Suit No. 489 of 2015.

The defendants failed to file their written statement within the stipulated period as prescribed under Order VIII Rule 1 of the Code of Civil Procedure, as such the suit was proceeding ex parte against them. The defendants, however, on May 13, 2016 filed their written statement along with two applications one for acceptance of the said written statement on condonation of delay and another for recalling of the order of ex parte hearing of the suit against them.

The defendants sought for condonation of delay in filing of the said written statement on the ground of illness of their father. The learned Trial Judge by the Order No. 15 dated September 03, 2016 dismissed both the applications of the defendants holding that they failed to produce any scrap of papers to substantiate their claim of illness of their father.

The defendants thereafter filed another application under Section 151 of the Code of Civil Procedure on September 28, 2016 for acceptance of the said written statement on condonation of delay, citing the selfsame ground that due to the illness of their father the written statement could not be filed with the prescribed period of limitation. However, this time the defendants at the time of hearing of the said application filed some medical papers relating to the treatment of their father. The learned Trial Judge by the order impugned has allowed the said application and accepted the written statement filed by the defendants.

Mr. De submits that the said medical documents were filed at the time of hearing of the application dated September 28, 2016 without supplying copies or giving inspection of those documents to the petitioner and even those documents were not filed under a firisti to form part of records of the suit. However, on a very cursory look to those documents at the time of hearing of the said application when it was detected that those documents are manufactured, the petitioner raised serious objection to the veracity of those documents, but the learned Trial Judge overruling the said objection of the petitioner has allowed the said application thereby accepted the written statement filed by the defendants beyond the prescribed period of limitation On perusal of the order impugned it appears that the petitioner questioned the genuineness of those medical documents filed by the defendants at the time of hearing of the said application. The documents on which the defendants are relying on for acceptance of their belatedly filed written statement must be supplied to the plaintiff as he is impeaching those documents on the ground of genuinity, particularly in view of the rejection of the similar prayer of the defendants on earlier occasion.

The order impugned, therefore, suffers from material irregularity and is, accordingly, set aside.

The learned Trial Judge is directed to decide the applications filed by the defendants for acceptance of their written statement on condonation of delay and for recalling of the order fixing the hearing of the suit ex parte against the said defendants afresh in accordance with law.

The learned Trial Judge must ensure that prior to the commencement of the hearing of the said applications the documents on which the defendants are relying on must be supplied to the plaintiff and unless copies of those documents are supplied to the plaintiff, the defendants will not be entitled to rely on the said documents.

The plaintiff will be at liberty to file appropriate affidavit challenging the veracity of those documents.

The learned Trial Judge is requested to decide the said applications expeditiously.

With the above, the revisional application being C.O.1771 of 2017 is disposed of.

There shall be no order for costs.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.