Kishore Kumar Prasad, J. - (1.) This appeal is directed against the Order No. 24 dated 31 May 1986 passed by Shri A K. Dutta, learned Judge 9th Bench, City Civil Court, Calcutta, in Misc. Case No. 874 of 1985. By the aforesaid impugned order, the learned trial Judge had rejected the application under Order 9 Rule 13 of the Civil Procedure Code filed on behalf of the defendant/appellant herein.
(2.) The plaintiff/respondent filed a money suit being No. 732 of 1983 against the defendant/appellant on 16.9.1983 for recovery of price of coal paid in advance together with interest The learned Court below issued summons for appearance of the defendant/appellant on 24.2.1984 under Order 5 Rule 19A of the Civil Procedure Code. The summons issued in the ordinary manner was not received back on 24.2.1984 but on this date, summons sent through registered post with A.D. to defendant/appellant was received back after service but the defendant/appellant did not appear. Hence the learned Trial Court fixed 28 2.1984 for ex parte hearing of the suit. The ex parte hearing of the suit was adjourned on several days that is on 24.4.84, 12.6.84, 23.7.84, 12.9.84, 4.12.84 , 1.2.85, 22.3.85 and 18.4.85 on various reasons and ultimately on 12.6.1985 vide Order No.14 the following order by the learned Trial Court came to be passed: - "The record is put up for hearing. The plaintiff is represented by their learned Advocate by filing a hazira. The defendant is found absent on calls without any step. The plaintiff examines the P. W. 1 Hardesh Raj Oujha, who proves the relevant letters, marked Exts. I and 2. The couter-foils of cheque and the bank statement are also filed by the plaintiff Heard. Perused the record. Considered. The plaintiff's claim is duly proved by the sworn testimony of the P.W.1, read with Exts. 1 and 2, the relevant letters. The counter- foils of cheque and the bank statement filed would also seem to lend point to the plaintiff's case. The suit should accordingly succeed. Court fees paid on the plaint are correct. Hence, Ordered: That the suit be decreed ex parte with costs. The plaintiff do recover the sum of Rs. 12,453.16p only from the defendant. The plaintiff shall also get interest from the defendant @ 18.5% p.a. till the date of recovery of the amount decreed."
(3.) On 9.8.1985, the defendant/appellant filed an application under Order 9 Rule 13 supported by an affidavit for restoration of the money suit being No. 732 of 1983 after setting aside the ex parte decree which was dismissed by the learned Trial Court on 31.5.1986 after hearing the learned Counsels appearing for the parties. The said order of the learned Trial Court is extracted below: - "The record is put up for hearing the Misc. Case. Both the parties are ready by filing haziras, and are represented by their respective learned Advocates. Hear the learned Advocates for both sides at length. Perused the record. Considered. The petitioner defendant has filed the instant application under Order 9, Rule 13 C. P. C., for setting aside the ex parte decree passed by the Court on 12.6.85 in the relevant original M.S. No. 732 of 1983 and for restoring the same to its original file on the ground that they were not aware of the pendency of the aforesaid relevant money suit until receipt of the letter dated 11.7.85 from their learned Advocate, Sri Mritunjoy Das Majumdar. Upon receipt of the said letter the officer concerned had directed the Dealing Assistance on 22.7.85 to search the summons of the said case, if any, served upon the petitioner; but no such paper could be traced out. The petitioner had farther specifically contended with more than usual clarity in para 10 of their relevant Misc. petition that theirs is a vast organization and the relevant summons was misplaced, for which they (petitioner) could not enter appearance in the relevant suit, resulting in the relevant ex parte decree. Hence the instant petition. As already noted, the petitioner had pleaded with conviction in para 10 of their relevant petition that theirs is a vast organization and the relevant summons was misplaced for which they could not enter appearance in the relevant suit, resulting in ex parte decree thereof, implying obviously that the summons was duly received by them. If not served, there could be no question of the summons being misplaced. It is not the case of the petitioner that no summons were served upon them. That being so, the petitioner must be deemed to have knowledge about the relevant money suit from the date of service of summons, and not from the date of the relevant letter dated 11.7.85 from their lawyer, as pleaded in para 3 of their relevant petition. On scrutiny of the record I further find that the summons in the aforesaid relevant suit sent to the defendant by registered post had duly been served upon the defendant on acknowledgement on 26.12.83, bearing an initial and the seal of the defendant-company. That being so, there could be no mistaking that the summons in the relevant suit was served upon the defendant on 26.12.83. But, the relevant Misc. petition has been filed on 9.8.85, much beyond the period prescribed by law in filing the same. The relevant Misc. petition having thus not been filed within the period prescribed by law is liable to be rejected The Misc. case should accordingly fail. Hence, Ordered : That the Misc. case be dismissed on contest with costs to the O.P. for the reasons made clear above. Hearing fee is assessed at Rs. 50/- only.";