N. Guruswamy And ANR. v. M/S Krishna Trading Company
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] ...
CO/21/2022 N. Guruswamy and another ... Petitioners Vs.
M/s Krishna Trading Company ... Respondent Mr. Arul Prasanth Mrs. Dolly Sarkar ...for the Petitioners Mr. N. A.Khan ... for the respondent November 17, 2022 [MAM] Item No. 07 The petitioners, who are the defendants in Other Suit No.12 of 2012, have preferred the instant revisional application challenging the order dated 20.01.2022 passed by the Ld. Joint Civil Judge (Senior Division) at Port Blair passed in the suit.
The petitioners state that the opposite party as plaintiff has brought the suit against them seeking, inter alia, a decree for khas possession of the suit premises and direction upon them to pay the enhanced rent amounting to Rs. 10,800/- from January, 2002 to March 2003 in terms of the agreement being the arrears of the enhanced rent. The petitioner filed written statement to contest the suit.
During the pendency of the suit the petitioners filed the application under Order 39 Rule 7 of Code of Civil Procedure for appointment of a Commissioner and after hearing the respective parties, learned Court below allowed the same vide order dated 29.09.2021. The opposite party challenged the order dated 29.09.2021 before this Court in
Revisional application being CO No. 19 of 2021. But the Revisional application preferred by the opposite party was dismissed.
On 09.11.2021 the suit was posted for hearing of the injunction application and the next date was fixed on 17.12.2021. On 17.12.2021 the matter was adjourned and the next date was fixed on 15.03.2022 as per cause list of the learned Court.
By preferring the application on 19.01.2022, the petitioner sought direction from the learned Court below upon the learned Commissioner to conduct the commission work and the application was posted for hearing on 15.03.2022.
The Learned Advocate appearing for the petitioner was surprised to hear from the learned Commissioner that the suit was fixed for ex parte hearing vide order dated 20.01.2022.
Now, the petitioners in this Revisional application seek setting aside the order dated 20.01.2022 and permission to contest the suit.
Learned Lawyer appearing for the petitioners submits that his clients want that they be allowed to contest the suit and the application arising out of the suit. Learned counsel points out that learned Court below is now to consider whether the report of the learned commissioner may be accepted. Learned counsel further points out that for setting aside the order dated 20.01.2022, his clients have preferred an application under Order 9 Rule 7 of Code of Civil Procedure.
Learned counsel appearing for the opposite party submits that the petitioners' application under Order 9 Rule 7 of the Code of Civil Procedure has already been dismissed by the learned Court below vide order dated 26.04.2022. Learned counsel submits that the petitioners ought to have brought this factum of rejection of the application before this Court.
Having heard the learned counsels appearing for the parties and on consideration of the copies of the orders annexed to the application as well as copies of the orders filed by learned counsel appearing for the opposite parties today it admittedly appears that the learned Court below by order dated 20.01.2022 posted the suit for ex parte hearing on 09.03.2022. Though the relevant copy of the order is not annexed to the Revisional application, a copy of the order dated 13.07.2022 of the learned Court below as filed by the opposite party reveals that the application filed by the petitioners was rejected.
What I feel, the petitioners intend to contest the suit and the application, if any, arising out of the suit. It is not in dispute that the petitioners are contesting the suit by filing written statement.
Having heard the learned counsels appearing for the parties, I feel that substantial justice will be rendered, if the order dated 20.01.2022 and the order dated 13.07.2022 are set aside. This Court in exercising of its power under Article 227 of the Constitution of India may pass such order to meet the ends of justice.
Accordingly, the Revisional application is allowed.
The order No. 121 dated 20.01.2022 and order No.127 dated 13.07.2022 passed by the learned Joint Civil Judge (Senior Division), South Andaman, Port Blair in Other Suit No.12 of 2012 are hereby set aside. Learned Trial Judge is directed to allow the petitioners to contest the suit and the application arising out of the suit.
It is expected that learned Trial Judge will dispose of the suit expeditiously.
With the aforesaid direction the revisional application is disposed of.
No order as to costs.
Let a copy of this order be communicated to the learned Court below immediately.
(Rabindranath Samanta, J.)