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B.P.JEEVAN REDDY, K.JAYACHANDRA REDDY
Salil Dutta – Appellant
Versus
T. M. And M. C. Private LTD. – Respondent
Key Points: - The appeal concerns setting aside ex parte decree under Order 9 Rule 13 CPC and the effect of counsel’s advice on non-appearance (!) - The decision discusses Rafiq v. Munshilal and its applicability to situations where a party acted on counsel’s advice but is educated and not a rustic villager (!) - The Division Bench’s reopening of its judgment due to not being aware of a Supreme Court decision and the subsequent impact on the finality of judgments is considered, including the principle that technicalities should not obstruct justice (!) - The court analyzes whether a party may suffer for the inaction or default of its advocate and whether an innocent litigant is protected (!) - The judgment ultimately allows the appeal, restores the earlier July 8, 1991 order, and directs costs to the defendant-appellant (!)
JUDGMENT
B.P. Jeevan Reddy, J.
1. Heard the counsel for the parties. Leave granted.
2. The appeal is preferred by the plaintiff against the judgment and order of a Division Bench of the Calcutta High Court allowing the appeal preferred by the respondent/defendant. The appeal before the High Court was directed against an order of the city civil court, Calcutta dismissing an application filed by the defendant to set aside the ex parte decree passed against him, under Order 9 Rule 13 of the Civil Procedure Code. The relevant facts may be noticed briefly.
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 its institution. On an earlier occasion, the defendant had filed two interlocutory applications, 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 (a
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