CRP 88/2010 BEFORE HON’BLE MR. JUSTICE AC UPADHYAY Mr. S.S. Dey, learned counsel for the petitioner and Mr. AC Sarmah, learned coun sel for the respondent. This revision is directed against the order dated 11.01.2010, passed by the lear ned Civil Judge, Sr. Division, Jorhat, in Title Suit No.66 of 1999, whereby the suit was restored to file by the Court, accepting the cost of Rs.15,300/-(rupees fifteen thousand and three hundred) directed to be paid by the defendant-respon dent. The respondent-Company availed a financial assistance from the petitioner-bank a gainst security interest created on various assets, including the tea crop of gr een leaves and manufactured tea, plants and machineries and various other movabl e assets, by creating simple and equitable mortgage with the bank upon the entir e land of the tea estate by depositing title deeds. However, eventually the oper ation of such financial assistance became irregular and repayment of loan was no t made, compelling the bank to initiate a proceeding for recovery, as provided u nder the Bengal Demand Recovery Act, 1913. Thereafter, the petitioner-bank obtai ned the ’Bakijai’ certificate in its favour for a sum of Rs.1,72,03,840.98, as p er provision of Seciton 4 of the act aforesaid. Being aggrieved by the issuance of the above certificate, in favour of the petit ioner-bank, the respondent-company instituted a Title Suit being T.S. No.66 of 1 999, before the court of the learned Civil Judge, Sr. Division, Jorhat. The suit aforesaid was fixed on 28.08.2004 for filing evidence in affidavit. The respond ent-plaintiff refrained from entering appearance and instead filed an applicatio n for adjournment, which was ultimately rejected by the learned trial Court. The reafter, the respondent-plaintiff filed an application under Order IX, Rule 9 re ad with Section 151 CPC, for setting aside the order dated 25.08.2004. However, the suit was restored to file. Thereafter, once again the respondent-plaintiff d efaulted in adducing evidence, and, subsequently, started taking adjournments on e after another. Learned trial Court, finally, after having allowed a few adjour nments, rejected the prayer for adjournments. The plaintiff-respondent, being aggrieved by the orders dated 20.12.2004 and 25. 08.2004, passed by the learned trial Court, approached this Court under Article 227 of the Constitution of India. In CRP No.305 of 2006, after elaborate discussions, though the conduct of the re spondent was not found satisfactory, but this Court came to the conclusion that for ends of justice the respondent-plaintiff was required to be afforded another opportunity to adduce evidence in affidavit, and, accordingly, while setting as ide the orders aforementioned passed by the learned trial Court afforded another opportunity to the plaintiff-respondent to adduce evidence and restored the sui t on payment of a cost of Rs.15,000/-(rupees fifteen thousand). In the aforesaid order, it was made clear that the suit shall be restored on payment of Rs.15,00 0/-(rupees fifteen thousand) as well as the earlier cost awarded by the learned trial Court. It was also made clear that the cost was to be deposited on 28.02.2 009, and, thereafter, the respondent-plaintiff, was required to file its evidenc e in affidavit, on 02.03.2009, by making it further clear that in the event of f ailure to deposit the cost and to file evidence in affidavit on the date fixed, the suit shall be decided by the learned trial Court in accordance with law with the provision of CPC. This Court further directed the learned trial Court to pr oceeded with the matter and complete the proceeding as expeditiously as possible , preferably within 30.05.2009. The aforesaid order was passed in presence of bo th the parties. The operative direction in CRP 305 of 2006 passed by this Court reads as follows:- Considering the matter in its entirety and having regard to the law laid down in the aforesaid decisions, I am of the considered opinion that ends of justice would be made if the plaintiff/petitioner is afforded another opportunity to add uce evidence in affidavit. I hasten to add that the conduct of the plaintiff/pet itioner in proceeding with the suit is deplorable. Not only the suit was once di smissed for default but the prayer for adjournment was also made in a very casua l manner. At this stage, Mr. S. S. Dey, learned counsel for the respondent/Bank submits that on 18.6.2004, the plaintiff/petitioner was granted adjournment with cost. However, the said cost is yet to be deposited by the plaintiff/petitioner . The suit is also pending for the last 10 years and in the process, the Bank, a public institution is not a position to get the Bakijai certificate implemented . For all the aforesaid reasons, while setting aside the impugned orders dated 25. 8.2004 and 20.12.2004 and affording another opportunity as a last chance to the plaintiff/petitioner to adduce evidence and restoring the suit, a cost of Rs.15, 000/- is awarded. The suit shall stand restored on payment of the aforesaid cos t of Rs.15,000/- as well as the earlier cost awarded by the learned Trial Court. The aforesaid cost shall be deposited with the learned Trial Court on or before 28.2.2009. Thereafter the plaintiff/petitioner shall file its evidence in affida vit on 2.3.2009. In the event of failure to deposit the costs and to file eviden ce in affidavit on the date fixed, the suit will be decided by the learned Trial Court in accordance with the provisions of the CPC. If the suit is restored on payment of the costs and the plaintiff/petitioner files evidence in affidavit on the date fixed, learned Trial Court shall proceed with the matter and complete the proceeding as expeditiously as possible, preferably within 30.5.2009. This e xception has been made towards stipulating the time limit of disposal, consideri ng the fact that huge amount is involved in the proceedings. However, no opinion is expressed on the merit of the case of the either parties. Writ petition is allowed to the extent indicated above. Admittedly, neither the respondent-petitioner nor the plaintiff-respondent enter ed appearance before the learned trial Court on the date fixed by the Court belo w. The record was not received in time by the learned trial court. On the date f ixed by this Court on 24.3.09, learned trial Court received a copy of the order passed in CRP 305/06 but ordered to await receipt of a copy of the order with fo rmal communication from the High Court. Suddenly on 4.1.2010, the plaintiff/resp ondent entered appearance claiming no knowledge and finally, learned trial Court , by its order, dated 11.01.2010, on the appearance of the plaintiff-respondent, accepted an amount of Rs.15,300/-(rupees fifteen thousand and three hundred), i n pursuance of the order of this Court, passed in CRP No.305 of 2006, restored t he case for trial. It would be pertinent to extract herein the operative direction in the order pas sed by the learned trial Court on 11.1.2010, which reads as follows: & &..In the final order passed in CRP 305/06, the Hon’ble High Court directed th e plaintiff to file evidence on 02.03.09, but this Court received the order of t he Hon’ble High Court on 18.04.09. The plaintiff when entering its appearance st ated that it had no knowledge of the disposal of the CRP 305/06 and accordingly, the plaintiff entered appearance on 04.01.2010. Considering these facts, the pl aintiff is directed to file his evidence on 11.02.2010. I make it clear that thi s shall be the last and final chance for the plaintiff to file evidence. Learned counsel for the petitioner has submitted that the learned trial Court could not have extended the time limit fixed by the High Court in CRP No.3 05 of 2006, for payment of the cost awarded by this Court. Since the order was p assed in presence of both the counsel, the plaintiff-respondent could not have t aken the plea that he did not have the notice of the order passed by the High Co urt. Mr. Dey, learned counsel for the petitioner pointed out that the accepting of the cost beyond the date fixed by this High Court in CRP 305/06 by the trial Court is largely improper and virtually tantamount to violation of the direction passed by this High Court. However, on perusal of the petition filed on behalf of the plaintiff-res pondent before the trial Court, it appears that the learned trial Court had rece ived the case records on 18.4.09 and order directing the office to list the case after appearance of the parties. The learned trial Court neither did proceed wi th the trial of the case after receipt of the order from the High Court, in term s of the direction of the Court nor it took steps to issue due notice to the par ties for appearing before the Court, unfortunately, kept the case in cold storag e, without passing any order. More so, learned trial Court, without giving any o pportunity of being heard to the petitioner-respondent in the suit, passed an or der on an application filed by the plaintiff-respondent, by accepting the cost o f Rs.15,300/-, imposed by this court. On the face of the specific direction, issued by this Court, indicating a specific date for appearance and payment of the cost, the learned trial Court ought to have given notice to both the parties before passing any operative orde r to restore the suit to file. Apparently, it is due to non-application of mind on the part of the tria l court, the title suit was kept in a cold storage, without passing any effectiv e order after receiving communication from the High Court in CRP 305/06. Therefo re, there is no reason either to punish or to blame anybody for the default comm itted by the Court. If on receipt of the copy of the order passed by this Court in CRP No.305 of 2006, the court ought to have taken up the title suit for dispo sal in accordance with law. The learned Court, however, did not do so. Since the impugned order was passed by the learned Court below, without affording any opportunity of being heard to the respondent-petitioner and withou t considering the legal implication of the order passed by this Court in CRP No. 305 of 2006, in my considered view the impugned order aforesaid warrants interfe rence by this Court. Therefore, without lingering the discussions any further and without del ving deep into the merit of the entire gamut of facts agitated before this Court , in order to afford adequate opportunity to both the parties, I propose to disp ose of this revision petition by setting aside the impugned order passed by the learned trial Court, with a direction to both the parties to appear before the l earned trial court on 25.04.2011. On appearance of the parties, the learned Cour t below, by affording adequate opportunity to both the parties of being heard, s hall consider and dispose of the application (Pt. No.04/2010) filed by the plain tiff/respondent and shall proceed with the case in accordance with law. Ordered accordingly. With the above observations and directions, this revision petition stand s disposed of.