- (1.)THIS Rule is directed against the judgment dated june 19, 1973 made in Suit No. 479 of 1972 by the learned Judge, 4th Bench, small Causes Court, Calcutta, rejecting two applications under Order 9 Rule 13 of the Code of Civil Procedure and section 5 of the Limitation Act respectively.
(2.)THE petitioner is a partnership firm registered under the Indian partnership Act, 1932 and it carries on business in Road Transport. For such business, the petitioner at all material times employed and still employs various categories of employees including temporary workers, drivers, conductors and coolies and the Head Office of the firm at all material times was land still is at No. 16, Tarachand Street, calcutta-1 and furthermore it has also a godown at 5, Balai Dutta Street, calcutta. It has been alleged that due to "gherao", on or about February 4, 1972 the petitioner-firm was closed and for the purpose of necessary police help and assistance, it had to move this hon'ble Court under Article 226 of the constitution of India, whereupon on february 11, 1972, a Rule being Matter mo. 41 of 1972 was issued. It appears that after obtaining an interim order in that said Rule with the consequent help and necessary assistance of the police, the petitioners could open the firm but again due to further labour trouble the firm was again closed on February 21, 1972 and thereafter on March 21, 1972 the petitioner moved this Hon'ble court under Article 226 of the constitution of India for the second time and obtained a Rule being Matter No. 106 of 1972. It has been alleged that since February 1972, the employees of the petitioner-firm indulged in "gherao" of the partners not only in their business place but also in their respective residential quarters, for which the partners were forced to leave their residence and reside elsewhere. It further appears that after obtaining the aforementioned second Rule i. e. Matter No. 106 of 1972 on March 21, 1972, on or about June 6, 1972, the petitioners informed the Officer-in-Charge of the local Police Station for necessary help and assistance with the object of entering into their business premises at both the place as mentioned hereinbefore for taking out some office records and actually such police help was afforded to them on June 19, 1972. It has further been alleged that on the night of the said June 19, 1972, with the necessary help and assistance of the police some records were removed from their office premises and corresponding by a General Diary entry bearing No. 2158 dated June 19, 1972 was lodged to that effect.
(3.)IT appears that in the meantime and more particularly on February 11, 1972, the opposite party filed Money suit No. 479 of 1972 for recovery of a sum of Rs. 1116. 78 P. as compensation for non-delivery of goods which were booked for carriage with the carrier viz. the petitioner and the said suit, according to the opposite party, was decreed exparte on March 14 1972, after due service of summons. It appears from the service return that the summons for the suit in question was admittedly received by an officer of the petitioner-firm on February 15, 1972, who incidentally was neither a partner nor one of such officers as mentioned in Order 30 Rule 3 of the code of Civil Procedure and he accepted the said summons without disclosing the particulars of his identity. Thereafter, on or about July 4, 1972, the petitioners filed an application under Order 9 Rule 13 of the Code of civil Procedure along with an application under Section 5 of the Limitation act and asked for recalling and reconsideration of the exparte order as mentioned hereinbefore after necessary condonation of the delay in filing the said application under Order 9 Rule 13 of the Code of Civil Procedure. In the said applications the petitioners contended that when they got some records out of their business premises on June 19, 1972 with the help of the police, a notice of the Court below relating to the connected Money Suit no. 479 of 1972 was found and immediately on such detection, one of the partners of the petitioner firm approached their learned lawyer of the Court below, who on inspection of the records informed that the suit had already been disposed of exparte. Unfortunately, the date when such information was received by the petitioners, has not been mentioned in the connected proceedings. It also appears that after passing of the said exparte decree, the opposite party has started Execution case No. 479 of 1972 and the learned trial Court by his judgment order of march 19, 1973 was pleased to dismiss the applications of the petitioner under order 9 Rule 13 of the Code of Civil procedure and Section 5 of the limitation Act, holding inter alia amongst others that the delay in filing the applications in question has not been satisfactorily explained. Against the said judgment order, the petitioners on july 9, 1973 moved and obtained the present rule.