- (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 9/06/1988 -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 Civil Procedure Code. On 19/05/1988 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 that he need not be present at the hearing of the suit on 9/06/1988, and thereafter till the applications filed by him under Order 14 Rule 5 and Order 6 Rule 16 Civil Procedure Code are disposed of. Be that as it may, on 9/06/1988, the advocate for the defendant prayed for an adjournment till the next day. It was adjourned accordingly. On June 10, neither the advocate for the defendant nor the defendant appeared, with the result the defendant was set ex parte. Hearing of the suit was commenced and concluded on 11/06/1988. The suit was posted for delivery of judgment to 13/06/1988. On 11/06/1988, an application was made on behalf of the defendant staling 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 13/06/1988. 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 thereon passed on 19/05/1988 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 suit on 9/06/1988 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 above suit,' ' the defendant did not appear before the court. It was stated that Mr Ravindran the Principal Officer 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 Civil Procedure Code. 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 8/07/1991 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 ground that the defendants' counsel could not bring to the notice of the division bench the decision of this court in Rafiq v. Munshila 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 and 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 the appeal on the ground that "technicalities should not be allowed to stand in the way of doing justice to the parties". The bench observed that when they disposedof the appeal, their attention was not invited to the decision of this court in Rafiq v. Munshiw 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 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 our duty to apply this decision and to hold that our 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 heard the counsel for the parties and by its judgment and order dated 3/03/1992 allowed the appeal mainly relying upon the decision of this court in Rafiq.;