Case: Salil Dutta Vs. T.M. &amp; M.C

3. The plaintiff/appellant filed a suit for ejecting the defendant - tenant on the ground of default in paying rent and also on the ground that the such premises are required for his own use and occupation. The suit was posted for final hearing on June, 9, 1988 - seven years after it institution. On an earlier occasion, the defendant had filed two interlocutory application, one under Order 14 Rule 5 and the other under Order 6 rule 16 CPC On May 19, 1988 the city civil court had passed an order on the said applications observing that the said applications shall be considered at the final hearing of the suit. According to the defendant (as per his statement made in the application filed by him for setting aside the ex parte decree) his advocate advised him he need not be present at the hearing of the suit on June 9, 1988, and thereafter till the applications filed by his under Order 14 rule 5 and Order 6 Rule 16 CPC are disposed of. Be that as it may, on June 9, 1988, the advocate for the diffident prayed for an adjournment till the next day. It was adjourned accordingly. On June 10, neither the advocate for the defendant no the defendant appeared, with the result the defendant was set ex parte. Hearing of the suit was commenced and concluded on June 11, 1988. The suit was posted for delivery of judgment to June 13, 1988. On June 11, 1988, an application was made on behalf of the defendant stating the circumstances in which his advocate had to retire from the case. This application, however, contained no prayer whatsoever. The suit was decreed ex parte on June 13, 1988. Thereafter the defendant filed the application to set aside the ex parte decree. In this application he referred to the fact of his filing two interlocutory applications as aforesaid, the order of the court therein passed on May, 19, 1988 and then stated "due to the advice of the learned advocate-on-record that your petitioner need not be present at the hearing of the a 1988, and thereafter till the applications filed by him under Order 14 rule 5 suit on June 9, 1988 and thereafter till the disposal of the application filed under Order 6 Rule 16 and Order 14 "Rule 5 read with Section 151 of the Code of civil Procedure in the 1988, and thereafter till the applications filed by him under Order 14 Rule 5 a 1988, and thereafter till the applications filed by him under Order 14 rule 5 the above suit, " the defendant did not appear before the Court. It was stated that Mr. Ravindran the Principal Of fiber of the defendant - Company was out of town on that date. It was submitted that because the defendant had acted on the basis of the advice given by the advocate-on record of the defendant, there was sufficient cause to set aside the ex parte decree within the meaning of Order 9 Rule 13 C PC. The trial court dismissed the said application against which an appeal was preferred by the defendant to the Calcutta high Court. The appeal was heard by a Division Bench and judgment pronounced in open court on July 8, 1991 dismissing the appeal. However, it appears, before the judgment was signed by the learned judges constituting the Division Bench, an application was moved by the defendant for alteration or modification and/or reconsideration of the said judgment mainly on the notice of the Division Bench the decision of this Court in Rafiq v. Munshilal and that the said decision clearly supports the defendants case. The counsel for the plaintiff opposed the said request. He submitted that once the judgment was pronounced in open court, it was final an that matter cannot be reopened just because a relevant decision was not brought to the notice of the Court. After hearing the counsel for both the parties, the division Bench reopened just because a relevant decision was not brought to the notice of the Court. After hearing the counsel for both the parties, the division Bench reopened the appeal on the ground that "technicalities should bit be allowed to stand in the way of doing justice to the parties". The Bench observed that when they disposed of the appeal, their attention was not invited to the decision of this court in Rafiq v. Munshilal and that in view of the said judgment they were inclined to reopen the matter. The Division Bench was of the opinion that "after a judgment is delivered by the High Court Bench was of the opinion that" after a judgment is delivered by the High Court ignoring the decision of the Supreme Court or in disobedience of a clear judgment of the Supreme court, it would be treated as non-est and absolutely without jurisdiction when our attention has been drawn that our judgment is per incuriam, it is out duty to apply this decision and to hold that out judgment was wrong and liable to be recalled ". (We express no opinion on the correctness of the above premise since it is not put in issue in this appeal. Accordingly, the division Bench here the counsel for the parties and by its judgment and order dated March 3, 1992 allowed the appeal mainly relying upon the decision of this Court in Rafiq

Court's reasoning:
Firstly, in the case before us it was not an appeal preferred by an outstation litigant but a suit which was posted for final hearing seven years after the institution of the suit, The defendant is a privet limited company having its registered office at Calcutta itself. The persons in charge of the defendant-company are not rustic villagers not they are innocent illiterates unaware of court procedures. Prior to the suit coming up for final hearing on June 9, 1988 the defendant had filed two applications whereupon the court ordered that they will be considered at the time of the final hearing of the suit. The plaintiffs case no doubt is that the said applications were part of delaying tactics being adopted by the defendant-tenants with a view to protract the suit, be that as it may, the defendant-tenants with a view to protract the suit. But that as it may, the defendant-thereafter refused to appear before the court. According to the defendant, their advocate advised them that until the interlocutory applications filed by them are disposed of the defendant need not appear before the court which means that the defendants need not appear at the final hearing of the suit. It may be remembered that the court proposed to consider the said interlocutory applications at the final hearing of the suit. It is difficult to believe that the defendants implicitly believed their advocates advice. Being educated businessmen they would have known that non-participation at the final hearing of the suit would necessarily result in an adverse decision. Indeed we are not prepared to believe that such an advice was in fact tendered by the advocate. No advocate with his salt would give such advice to his client. Secondly, the several contradictions in his deposition which are pointed out by the Division Bench in the impugned order go to show that the whole story is a later fabricationAs we have mentioned hereinabove, this was an on-going suit posted for final hearing after a lapse of seven years of its institution. It was not a second appeal filed by a villager residing away from the city, where the court is located. The defendant is also not a rustic ignorant villager but a private limited company with its head-office at Calcutta itself and managed by educated businessmen who know where their interest lies. It is evident that when their application piqued and refused to appear before the court. Maybe, it was part of their delaying tactics as alleged by the plaintiff. Maybe not. But one thing is clear - they chose to non-cooperate with the court. Having adopted such a stand towards the court, the defendant has no right to ask its indulgence. Putting the entire blame upon the advocate and trying to make it our as if they were totally unaware of the nature or significance of the proceedings is a theory which cannot be accepted and ought not to have been accepted