CRP 467/2010 BEFORE THE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT & ORDER (ORAL) Heard Mr. D Mozumdar, learned counsel appearing for the petitioners. Also heard Mr. J Chutia, learned counsel appearing for the respondents. 2. The legality and validity of the order dated 30.09.2010 passed in Title Suit No. 157 of 2008 on the file of the learned Munsiff No.2, Nagaon, whereby an d whereunder the learned trial court rejected the petition No.578 of 2009 arisin g out of Title Suit No. 157 of 2008 holding that the court has no jurisdiction t o review the order passed by its predecessor court in absence of extra-ordinary circumstances, thereby affirming the order dated 03.09.2009 wherein the leaned t rial court had held that the suit would proceed ex-parte against the defendants/ petitioners since they have failed to file their written statement in spite of s ummons being served on 05.02.2009, which are under challenge in this revision pe tition under Article 227 of the Constitution of India. 3. The respondents herein as plaintiffs brought a suit being Title Suit No. 157 of 2008 on the file of the learned Munsiff No.1, Nagaon against the defenda nts/petitioners seeking the following reliefs: a. That the plaintiffs’ title in respect of the suit land be declared and t heir possession in respect thereof be confirmed; b. That a permanent injunction be issued against the defendants thereby pre venting them from dispossessing the plaintiffs of the suit land; c. That the mutation of late Ismail in the 1930-31 Patta be cancelled and t hat it be declared that the defendants have no right or tile in respect of the s uit land; d. That the plaintiffs be awarded the cost of the suit and they be awarded any other or further relief or reliefs as the court may deem fit and proper. 4. The entire order sheets have been annexed in the revision petition, rele vant orders whereof are mentioned hereinbelow (though not reproduced in verbatim ) in order to determine the case of the petitioner as to how the case proceeded ex-parte against them on 03.09.2009 and how the petition No. 578/09 has been rej ected on 30.09.2010 seeking cancellation of ex-parte order: - a. The learned court registered the case on accepting the plaint on 18.12.2 008 whereby the court issued notice to the defendants fixing 11.02.2009 for serv ice report. The case was withdrawn from the court of learned District Judge, Nag aon and transferred to the learned Munsiff No.2 for disposal; b. On 22.12.2008, the case record was received on transfer vide order dated 18.12.2008 passed by the learned District & Sessions Judge, Nagaon for trial/di sposal, fixing as before for S.R. and W.S.; c. On 11.2.2009 the plaintiffs were present. The summons received back afte r service as disclosed by the process server. The defendant No. 3 by petition No . 64/09 sought time to file their written statement on behalf of all the main de fendants. Prayer allowed fixing 12.03.2009 for W.S. The pro forma defendant Nos. 7 to 13 remained absent; d. The case record put up on 13.03.2009 before the court as the court was c losed on the date fixed. Both the parties were present. Next date fixed on 23.04 .2009 for filing written statement; e. The case record put up on 28.04.2009 as the election was held on the dat e fixed earlier. Plaintiffs present. Fixed 05.06.2009 for written statement; f. Both the parties were present. As the Presiding Officer was on training, next date fixed on 15.07.2009 for filing written statement; g. Case record put up on 15.07.2009. Both the parties were present. Presidi ng Officer was on leave. Fixed 03.09.2009 for filing written statement; h. Both the parties were present on 03.09.2009. The date was fixed for fili ng written statement. The summons had been served on 05.02.2009. But the defenda nts have failed to file the written statement. As such the suit was directed to be proceeded ex-parte against them fixing 21.10.2009 for ex-parte hearing. 5. It appears from the record as annexed, that on 21.10.2009 both the parti es were present and the defendants have filed a petition being petition No. 57 8/09 under Section 151 of the Code of Civil Procedure (’the Code’ for short) for cancellation of the order of ex-parte hearing whereas by petition No. 592/09 t he plaintiffs sought time for ex-parte hearing. Accordingly fixed 03.12.2009 f or ex-parte hearing alongwith hearing on petition No. 578 of 2009. However, the case could not be heard till 18.09.2010. The learned trial court heard the matte r on 30.09.2010 and rejected the petition No. 578 of 2009 by holding as thus - i) The petition No. 578/09 has been filed by the defendants praying to vac ate the order of the court dated 03.09.2009 and allow them to file written state ment contending that the date for filing the written statement was fixed on 23. 04.2009 and after 23.04.2009 the next date fixed on 05.06.2009 for filing writte n statement and accordingly they submitted their written statement on an off dat e i.e. 27.04.2009 to the Bench Assistant and on assurance by the Bench Assistant he thought that the necessary orders would be passed. But on perusal of the cas e record it appears that the date for filing written statement was once fixed on 23.04.2009 but since the court was closed for elections on that date, the case record was put up on 28.04.2009. On that date the plaintiffs were present but the defendants were absent. Thereafter, three dates were fixed for filing writt en statement on 05.06.2009, 15.07.2009 and 03.09.2009 and on 03.09.2009 the cour t declared that the suit will proceed ex-parte. ii) The written statement filed on 27.04.2009 found not available in the cas e record. However, the learned counsel representing the defendants contended tha t the written statement was lost by the Bench Assistant, which, however, could n ot be substantiated and thus the court failed to understand as to what prevented the defendants to file a petition to put up the case record and to accept the w ritten statement when they filed the written statement on an off date and as to what prevented them to make a submission before the court that the statutory per iod for filing written statement would expire if they wait for the date fixed b y the court, more so, when the defendants were present even on the date when t he order of ex-parte hearing was made and it has not been brought to the notice of the court that the written statement had already been filed on that date or o n the preceding two dates; iii) Therefore, the learned trial court has held that the court has no jurisd iction to review the order of its predecessor court in absence of extra-ordinary circumstances, when the defendants had not followed the standard procedure for filing written statement on an off date. They even did not show due diligence to detect and correct the mistake within time and hence rejected the petition vide impugned order dated 30.9.2010, which is under challenge before the court. 6. Admittedly, the learned court below had fixed 23.4.2009 for filing the w ritten statement. The court, however, remained closed on 23.04.2009 for election . The case so fixed on 23.04.2009 was put up before the court on 28.04.2009. The reafter, three dates were fixed for filing written statement on 05.06.2009, 15.0 7.2009 and 03.09.2009 whereof the court passed an order that the suit will proce ed ex-parte. The date, when the ex-parte order was passed, the counsel for the d efendants were present but it was not brought to the notice of the court that th e written statement, in fact, was filed on 27.04.2009 which was an off date. No application was filed to put the case record and to accept the written statement save and except a submission made on behalf of the defendants that the written statement was handed over to the Bench Assistant of the court who lost the writt en statement so filed, but the same was not substantiated and hence held by the learned court that there is lack of diligence to detect and correct the mistake within time and as such no ground has been made out to review the order of ex-pa rte, hence, rejected the petition No. 578/09 holding that the court has no juris diction to review the order of its predecessor in absence of extra ordinary cir cumstances. 7. Considered the arguments advanced. Perused the materials available on re cord. The record would show that the defendants have engaged/appointed the couns el by a document in writing signed by the defendants duly authorizing their coun sel to plead on their behalf. Every such appointment shall be deemed to be in fo rce until determined with the leave of the court by a writing signed by the part y (client) and filed in court or until the party or the pleader dies or until al l proceedings in the suit are ended so far as regards the party and this is re quirement of law as envisaged under Order 3 of the Code. Therefore, the rule is primarily intended to protect the party from anybody other than the concerne d counsel authorised by them appearing, acting and making representations on the ir behalf and is not intended to penalize the party. In the instant case, the de fendants in fact instructed the counsel to file the written statement in time. I n fact the date of filing the written statement was fixed on 23.04.2009 and the written statement was filed on an off date i.e. on 27.04.2009 by their counsel t hough there were subsequently three dates were fixed for filing the written stat ement. The counsel, who has been engaged under Order 3 of the Code requires to b ring on record the written statement filed on 27.04.2009 and there is a lack of diligence on the part of the counsel for which the party (defendants in this cas e) should not be allowed to suffer. 8. Mr. Mozumdar, learned counsel appearing for the petitioner has brought t o the notice of the Court the petition filed by the petitioners/defendants under Section 151 of the Code, alongwith an affidavit stating on oath therein that Md . Habibur Rahman, one of the principal defendants was personally present in the court on 27.4.2009, he signed the affidavit, had it passed by the Sheristadar an d accompanied by the defendants’ Advocate, personally delivered the written stat ement to the Court Assistant. Mr. Mozumdar thus submitted that it was the duty o f the counsel representing the petitioners/defendants to bring this fact to the notice of the learned court by way of filing a petition, which was not done. The refore, for the fault of the counsel, his client, i.e. the petitioners should no t suffer, inasmuch as, the party having done everything in his power, is rest as sured that his engaged counsel would do the needful. I find force in the submiss ion advanced by Mr. Mozumdar, learned counsel representing the revision petition ers. 9. Per contra, Mr. Chutia, learned counsel appearing for the respondents, w hile supporting the order passed by the court would submit that the impugned ord er has been rightly passed, which may not be interfered with by this Court while invoking power under Article 227 of the Constitution. 10. A written statement is the pleading of the defendant, without which he c annot claim his right of defence of the plaintiffs’ suit, save and except to pa rticipate in the proceeding as held by the learned trial court vide order dated 30.09.2009, thereby valuable right of the defendants has been lost. In the case in hand, the written statement has been filed as per statement made on oath by t he defendants, but the same has not been made available with the record and/or t he counsel failed to bring on record on the next date fixed subsequent to 27.04. 2009 and/or failed to bring to the notice of the court relating to submission of written statement for which the ex-parte order came to be passed. Subsequently the application for cancellation of the ex-parte order was rejected for which de fendants are suffering. 11. There is another question left out to be dealt with relating to the conc luding paragraph of the order dated 30.09.2010 wherein the learned trial court expressed its opinion that the court has no jurisdiction to review the order of its predecessor court in absence of extra-ordinary circumstances. When the successor court dealt with the matter the court is empowered to have the same p owers and shall perform the same duties as those respectively conferred on succe ssor court who is duty bound to entertain the review proceedings as there is not hing under Order 47 Rule 1 of the Code to indicate that the proceedings in revie w must be taken by the earlier court who had passed the order and the learned tr ial court has power to set aside the ex-parte order. Therefore, finding of the c ourt that jurisdiction to review the order of its predecessor court cannot be m ade in absence of extra ordinary circumstances cannot be accepted. 12. In similar circumstances, the Hon’ble Supreme Court in Rafiq and another -Vs- Munshilal and another reported in AIR 1981 SC 1400, set aside the orders o f dismissal as well as rejecting the prayer for recalling of the order of dismis sal on the ground that a party who, as per the present adversary legal system, h as selected his advocate, briefed him and paid his fee can remain supremely conf ident that his lawyer will look after his interest and such an innocent party wh o has done everything in his power and expected of him, should not suffer for th e inaction, deliberate omission or misdemeanour of his counsel. In the case of Ramesh Chand and another -vs- Punjab National Bank and Or s. reported in AIR 1990 SC 1147, the Hon’ble Supreme Court held that although th e conduct of the appellants has certainly been far from satisfactory and it does appear that they have tried to delay the matters, one final opportunity could b e given to them for filing the written statement on depositing in court the sum of amount as directed by the Supreme Court within a period of four weeks from th e date of order and in the event of deposit of the amount as directed, the impug ned order will be set aside and they will be permitted to file their written sta tement within one week thereafter. 13. Considering the matter in its entirety and after following the decisions of the Hon’ble Supreme Court in Rafiq (supra) and Ramesh Chand (supra) and upon considering the peculiar circumstances of the case, the Court is of the opinion that one final opportunity be given to the defendants for filing written statem ent on condition that the defendants/petitioners shall deposit an amount of Rs.3 ,000/- (Rupees Three Thousand) only within a period of 6 (six) weeks from today and on deposit of Rs.3,000/-, the written statement filed by the defendants-pet itioners be taken on the file of the learned Munsiff No.2, Nagaon and in case of non-availability of the written statement as found by the learned trial court, the petitioners herein are directed to submit the written statement filed with t he instant revision petition and thereafter the court would proceed with the cas e in accordance with law. The amount so deposited be given to the plaintiffs for laches on the part of the defendants-petitioners causing delay in disposal of t he suit. The parties are directed to appear before the learned court of Munsiff No.2, Nagaon, on 14.11.2011 for further order. 14. In the result, the revision petition is accepted and the orders dated 03 .09.2009 and 30.09.2010 passed in petition No.578/09 arising out of Title Suit N o.157/2008 are set aside and quashed. 15. The parties are left to bear their own costs.