MANGALDOI TEA CO. LTD. Vs. MD. ABDUL LATIF MUNSHI

JUDGEMENT

(1.) THIS Civil Revision under Section 115 of the Civil Procedure Code is directed against an order dated 20-5-1974 passed in Misc. (J) Case No. 8 of 1973 arising out of Title Suit No. 15 of 1971.

(2.) THE petitioner company, as plaintiff, filed a suit, being Title Suit No. 15 of 1971, in the court of the Munsiff at Mangaldoi against the opposite party for a declaration of title and for ejectment from the suit land. The opposite party as defendant appeared in court and filed written statement and in due course the matter came up before the learned Munsiff who passed an ex parte decree on 14-11-1972. Thereafter, on 11-1-1973 the opposite party filed an application purported to be under Order 9 R.13 of the Civil Procedure Code for setting aside the ex parte decree, which was contested by the present petitioner and thereafter several adjournments were taken by the parties from time to time and at long last the matter was posted for hearing on 14-3-1974. But on that date the Presiding Officer of the court, namely, the Munsiff was absent. On that date, on behalf of the petitioner, an application was filed complaining that although the present O. P. was away in Bangladesh, in the Hazira filed in Court his name was shown as present in court on 13-1-1974 and 14-3-1974. On receipt of this application, the Civil Shristadar in charge of the Munsiff's court, who could not fix any date of hearing of the suit passed an order directing that the matter may be put up for orders on 22-4-1974; on 22-4-1974, the learned Munsiff was again absent and accordingly the matter had to be put off for 20-5-1974. The order dated 22-4-1974 as well, was passed by the Civil Shristadar who had no power and jurisdiction to fix a date of hearing of the suit. Accordingly the case came up on 20-5-1974 before the Munsiff. As stated earlier, on that date, apparently the case was not fixed for hearing of any other matter excepting for consideration of the application filed by the petitioner on 14-3-1973. But on that date, namely, 20-5-1974, the present petitioner filed an application stating about the illness of the representative of the plaintiff-company and also stated that the learned counsel of the petitioner was away in Shillong, wherefor a prayer was made for adjournment. But the learned Munsiff rejected the said application stating that the applicant namely, one Tarini Misra had no locus standi to file the said application and in the same breach the learned Munsiff restored the suit to file observing as under:-

(3.) HAVING heard the learned counsel and also on perusal of the record, I am of definite opinion that on 20-5-1974, the matter could not have been taken up for hearing by the learned Munsiff. The matter was set down for hearing on 14-3-1974 on which date, the Presiding Officer was absent, but an application was filed by the plaintiff and the Civil Shristadar of the court passed an order directing that the application should be put up for orders on 22-4-1974. On 22-4-1974 the learned Munsiff was absent and therefore the Civil Shristadar directed that the matter may be placed for orders before the learned Munsiff. The Civil Shristadar had no jurisdiction vested in him by law either under the Civil Procedure Code or under the Civil Rules and Orders to make any judicial order like fixing a date of hearing of a suit. This being the admitted position, there is no escape from the conclusion that 20-5-1974 was not the date set down for hearing of the application under Order 9 Rule 13 of the Code. Under the circumstances. I am of the opinion that the learned Munsiff acted illegally and without jurisdiction in taking up the matter for hearing on 20-5-1974 and disposing of the same in the absence of the plaintiff and his counsel. Accordingly I hold that the impugned order was made without jurisdiction.