1 8
Page of
HIGH COURT OF TRIPURA
AGARTALA
CRP No.37 of 2024
1. Prasenjit Shome, son of Late Manmohan Shome, Partner & Attorney of M/s
Uma Bricks Industries, South Sonaichari, resident of village Netaji Pally, PO &
PS- Belonia, District- South Tripura.
2. Smt. Chhanda Choudhury, wife of Late Srimanta Majumder, Partner of M/s
Uma Bricks Industries, South Sonaichari, resident of village- Arjya Samaj, PO
& PS- Belonia, District- South Tripura.
3. Sri Pulak Majumder, son of Late Srimanta Majumder, Partner of M/s Uma
Bricks Industries, South Sonaichari, resident of village- Arjya Samaj, PO & PS-
Belonia, District- South Tripura.
4. Sri Babul Silsarma, son of Late Kumud Silsarma, Partner of M/s Uma Bricks
Industries, South Sonaichari, resident of village- Netaji Pally, PO & PS-
Belonia, District- South Tripura.
5. Smt. Abha Sarkar (Roy), wife of Sri Priya Rn. Roy, Partner of M/s Uma
Bricks Industries, South Sonaichari, resident of village- Jail Road, PO & PS-
Belonia, District- South Tripura.
6. Sri Jagneswar Datta, son of Late Harendra Kr. Dutta, Partner of M/s Uma
Bricks Industries, South Sonaichari, resident of village & PO- South
Sonaichari, PS- Belonia, District- South Tripura.
7. Sri Bisweswar Datta, son of Late Harendra Kr. Dutta, Partner of M/s Uma
Bricks Industries, South Sonaichari, resident of village & PO- South
Sonaichari, PS- Belonia, District- South Tripura.
8. Smt. Sukla Dutta, wife of Late Gobinda Datta, Partner of M/s Uma Bricks
Industries, South Sonaichari, resident of village & PO- South Sonaichari, PS-
Belonia, District- South Tripura.
9. Miss Sanchita Datta, daughter of Late Gobinda Datta, Partner of M/s Uma
Bricks Industries, South Sonaichari, resident of village & PO- South
Sonaichari, PS- Belonia, District- South Tripura.
10. Miss Puja Datta, daughter of Late Gobinda Datta, Partner of M/s Uma
Bricks Industries, South Sonaichari, resident of village & PO- South
Sonaichari, PS- Belonia, District- South Tripura.
11. Miss Arpita Datta, daughter of Late Gobinda Datta, Partner of M/s Uma
Bricks Industries, South Sonaichari, resident of village & PO- South
Sonaichari, PS- Belonia, District- South Tripura.
12. Smt. Anju Datta, daughter of Late Sudhangshu Bhusan Datta, Partner of
M/s Uma Bricks Industries, South Sonaichari, resident of village- Arjya
Colony, PO & PS- Belonia, District- South Tripura.
13. M/s Uma Bricks Industries, a partnership firm, having its registered office
at South Sonaichari, PS- Belonia, District- South Tripura, represented by its
Partner & Attorney, namely, Sri Prasenjit Shome, son of Late Manmohan
Shome, resident of village- Netaji Pally, PO & PS- Belonia, District- South
Tripura. All the Plaintiff-Petitioners are being represented by their duly
authorized Attorney, namely, Prasenjit Shome, son of Late Manmohan Shome
(i.e., the Plaintiff-Petitioner No.1 herein).
2 8
Page of
.........Petitioner(s);
Versus
1. Smt. Samagata Sarkar, daughter of Late Sankar Prasad Sarkar, Partner of M/s
Uma Bricks Industries, South Sonaichari, resident of village- Jail Road, PO &
PS- Belonia, District- South Tripura.
2. Smt. Rikta Paul Sarkar, wife of Late Sankar Prasad Sarkar, resident of
village-Jail Road, PO & PS- Belonia, District- South Tripura.
3. Sri Souvik Sarkar, son of Late Sankar Prasad Sarkar, resident of village- Jail
Road, PO & PS- Belonia, District- South Tripura.
.........Respondent(s)
For Petitioner(s) : Mr. Koomar Chakraborty, Advocate.
For Respondent(s) : Mr. Ratan Datta, Advocate,
Mr. Aditya Baidya, Advocate,
Mr. Diptanu Das, Advocate.
APARESH KUMAR SINGH
HON’BLE THE CHIEF JUSTICE MR.
Order
27/09/2024
Heard Mr. Koomar Chakraborty, learned counsel for the
petitioners and Mr. Ratan Datta, learned counsel for the respondents.
2. Title Suit No.03 of 2014 preferred by the plaintiff-petitioner herein
st
was rejected under Order VII Rule 11(d) of CPC vide order dated 21 August,
2015 by the learned Civil Judge (Senior Division), South Tripura, Belonia.
Plaintiff-petitioner preferred Title Appeal No.05 of 2015 against the order of
th
rejection which was allowed on 20 December, 2018. Thereafter, it seems that
petitioner could not submit the deficit Court Fee even after few adjournments
th th
granted vide order dated 24 July, 2019 and 29 July, 2019 by the learned
Court of Civil Judge (Senior Division), South Tripura, Belonia. As a
th
consequence thereof, it was dismissed for non-prosecution on 5 August, 2019.
Meanwhile, the defendants in the Title Suit and Title Appeal preferred RSA
th
No.39 of 2019 against the order dated 20 December, 2018 in Title Appeal
th
No.05 of 2015. RSA No.39 of 2019 was ultimately withdrawn on 4 January,
3 8
Page of
2021. Plaintiff-petitioner preferred an application under Order IX, Rule 10 of
CPC in November, 2020 with an application for condonation of delay of 232
th th
days counted from 6 August, 2019 to 24 March, 2020. The same was rejected
th
by order dated 19 April, 2021 which is under challenge in the present revision
petition under Article 227 of the Constitution of India. One more fact needs to
be indicated herein to complete the chronology of events. Petitioner on an
erroneous advice preferred miscellaneous appeal under Order XLIII Rule 1 of
CPC against the order dated 19.04.2021 before the learned District Judge,
South Tripura, Belonia, in Misc. Appeal No.02 of 2021 which was dismissed as
not maintainable vide order dated 28.02.2024. Thereafter, the instant revision
th
petition was preferred on 16 April, 2024.
3. Mr. Koomar Chakraborty, learned counsel for the petitioners,
submits that the learned Court did not consider the explanation furnished by the
plaintiff for condonation of delay of 232 days during which period, a regular
second appeal was filed and pursued by the respondents against the revival of
the title suit. Therefore, petitioner was bearing a bona fide belief that the
learned Trial Court may not be proceeding with the title suit. Petitioner s vital
’
right, interest in seeking the relief prayed for in Title Suit No.03 of 2014 may
be closed for all purposes if the suit is not revived. Learned counsel for the
petitioner has drawn the attention of the Court to the orders dated 24.07.2019
and 29.07.2019 [Annexure-3] to show that on the request of learned counsel for
the plaintiff, time was allowed to remove the deficit Court Fee. The regular
second appeal had been filed on 27.06.2019 itself. The status report of filing of
the regular second appeal has been enclosed at Page 37 of the petition.
4 8
Page of
However, only for non-appearance on one day after 29.07.2019 i.e. on
05.08.2019, the suit was dismissed for non-prosecution [Annexure-4].
Thereafter, the respondents withdrew the regular second appeal on 04.01.2021
[Annexure-5]. A review petition invoking Order IX Rule 10 of the CPC was
preferred in November, 2020 with an application for condonation of delay of
232 days counted from 06.08.2019 to 24.03.2020 when COVID-19 intervened.
This has been rejected by the impugned order without considering that during
pendency of the second appeal preferred by the respondents, the petitioner
under a bonafide impression that learned Trial Court may not proceed with the
matter. Learned counsel for the petitioners submits that delay is not inordinate
and also properly explained. He however further submits that instead of
invoking the provisions of Order IX Rule 4 of the CPC, erroneously, the
learned counsel representing the plaintiff-petitioner had invoked the provision
of Order IX Rule 10 with a nomenclature of review petition. Plaintiff should
not be made to suffer for mistake of his counsel. He also submits that mere non-
mentioning of an incorrect provision should not be fatal to the application if the
power to pass such an order is available with the Court as has been held by the
Apex Court in the case of Pruthvirajsinh Nodhubha Jadeja v. Jayeshkumar
Chhakaddas Shah and Others reported in (2019) 9 SCC 533 in context of
exercise of powers by the trial Court under Civil Procedure Code, 1908 itself.
The correct provision for realization of the suit should have been Order IX Rule
4 of the CPC. Therefore, the impugned order may be set aside. The suit may be
restored to be decided upon proper contest between the parties.
5 8
Page of
4. Mr. Ratan Datta, learned senior counsel for the respondents, has
strongly opposed the prayer. He submits that right from the outset, the plaintiff
has not been diligent in prosecuting the suit as initially it was rejected under
Order VII Rule 11(d) of the CPC. Thereafter, litigation pursued and the suit
was restored by the First Appellate Court. Even thereafter petitioner was not
diligent and did not deposit court fee despite thrice time being granted.
Therefore, the learned Trial Court had no option but to dismiss the suit for non-
prosecution. The regular second appeal preferred by the respondents was
withdrawn on 04.01.2021 as there was no suit in existence. There was no stay
of the trial Court proceedings during pendency of the regular second appeal.
Moreover, even after dismissal of the petition styled as review petition
preferred under Order IX Rule 10 incorrectly, petitioner, instead of pursuing his
remedy under Article 227 of the Constitution of India, had filed a
miscellaneous appeal under Oder XLIII Rule 1 of CPC which was held to be
not maintainable by the learned District Judge, South Tripura, Belonia in Misc.
Appeal 02 of 2021 vide order dated 28.02.2024. The instant revision petition
has been preferred on 16.04.2024 which shows the lack of diligence in
prosecuting the suit in a proper manner leading to unnecessary harassment of
the respondents. Learned counsel for the respondents has relied upon a decision
of the Apex Court in the case of Mohamed Ali v. V. Jaya and Others reported
in (2022) 10 SCC 477 on the proposition that application against an ex parte
decree in revisional jurisdiction under Article 227 of the Constitution of India
should not be entertained since the correct remedy lies under Order IX Rule 13
of the CPC. As such, this Court may not interfere in the matter.
6 8
Page of
5. I have considered the submission of learned counsel for the parties
and taken note of the relevant dates and events in the journey of this litigation
starting from institution of the Title Suit No. 03 of 2014 till now. The
chronology of facts needs no repetition but the question here before this Court
is whether the learned Court was right in rejecting the petition for setting aside
the dismissal of the suit for non-prosecution by condoning the delay of 232
days. An incidental question which also arises is whether the petition for
restoration styled as invoking Order IX Rule 10 of the CPC
‘Review Petition’
instead of under Order IX Rule 4 of the CPC could be
‘Restoration Petition’
entertained by the learned Trial Court.
6. It is well settled that procedural law is handmaiden of justice. In
the instant case, invocation of a wrong provision under the same Order IX
could not be attributed to the party but to the counsel. For such a mistake of the
counsel, litigant should not be allowed to suffer. Even otherwise if the power
exists with the authority or the Court, mere non-mentioning or wrong
mentioning of the provisions would not denude the Court from the power to
pass such an order if it is available with the Court. This is the view also held by
the Apex Court in the case of Pruthvirajsinh Nodhubha Jadeja (supra) at Para
8 in the context of filing of application under Order I Rule 10 of the CPC
instead of Order XXII Rule 10 of the CPC by the respondents therein. Learned
counsel for the respondents has placed reliance upon a decision in the case of
Mohamed Ali (supra). However that decision is on the proposition as to
whether the High Court under Article 227 of the Constitution of India should
have entertained a challenge to an ex parte decree without exhaustion of the
7 8
Page of
remedy by the plaintiff by invoking the provisions under Order XLIII Rule 1 of
the CPC. It is in those circumstances that the Apex Court observed that the
approach of the High Court in entertaining an application under Article 227
without exhaustion of the remedy of regular first appeal available under Order
XLIII Rule 1(d) of the CPC was not correct.
7. Having regard to the facts and circumstances noted above
therefore wrong invocation of a provision by the plaintiff-petitioner for
restoration of the title suit should not have prevented the Trial Court from
entertaining the petition for the reasons discussed hereinabove. While dealing
with the first issue posed earlier, it is apparent that the title suit was dismissed
for non-deposit of the deficit Court Fee only on one date of non-appearance of
the plaintiff, i.e. 05.08.2019 though adjournments had been granted earlier on
two dates to supply the deficit Court Fee. It is also apparent that during that
time, a regular second appeal had been preferred by the respondents against the
order of the First Appellate Court whereby the appeal preferred by the plaintiff
against the order of rejection of the plaint under Order VII Rule 11(d) of the
CPC was allowed. Incidentally the second appeal remained pending till it was
withdrawn on 04.01.2021, obviously on account of dismissal of the title suit. Be
that as it may, the facts and events disclose that the explanation for the delay of
232 days was not suffering from lack of bona fides. No purpose could have
been achieved by the petitioner by the delay in filing the restoration petition for
prosecuting the suit. The rejection of the plaint on grounds of Order VII Rule
11(d) or filing of review petition instead of restoration petition under the correct
provision of Order IX Rule 4 or erroneously filing of a miscellaneous appeal
8 8
Page of
under Order XLIII Rule 1 of the CPC, could not be attributed to the litigant.
Petitioner has preferred the present application under Article 227 of the
Constitution of India after the miscellaneous appeal erroneously preferred
under Order XLIII Rule 1 of CPC dismissed on 28.02.2024. Though there are
no specific limitation provided for invocation of the jurisdiction of the Court
under Article 227 of the Constitution of India but the time spent in prosecuting
the appeal before a forum or Court in good faith which lacked jurisdiction to
entertain the appeal could be sought to be excluded under Section 14 of the
Limitation Act, 1963.
8. Therefore, taking a holistic view of the matter and for reasons
recorded hereinabove, this Court is inclined to interfere in the impugned order
dated 19.04.2021 rejecting the prayer for restoration of the title suit. The
impugned order is accordingly set aside and the delay in seeking restoration of
the suit is condoned. Let the suit be restored to its original file. The deficit
Court Fee, if any, in the pending suit be removed within a period of 2(two)
weeks. Petitioner shall pay a cost of Rs.5,000/- to the respondents within a
period of 2(two) weeks.
9. With the aforesaid observations and direction, the instant revision
petition is disposed of.
(APARESH KUMAR SINGH), CJ
Pijush/
Digitally signed by DIPESH DEB
DIPESH DEB
Date: 2024.09.30 17:36:25
+05'30'