Renuka Das vs Maya Ganguly & Anr

Renuka Das ... .Appellant VERSUS

Maya Ganguly & Anr. ...Respondents

JUDGMENT

TARUN CHATTERJEE, J.

1. Leave granted.

2. This appeal is directed against the judgment and order

dated 28th of March, 2008 passed by a learned Judge of

the High Court at Calcutta in C.O.No.2736 of 2000

whereby the High Court had restored the ex parte decree

for eviction passed against the appellant in respect of the

suit premises which was filed, inter alia, on the ground of

default in payment of rent, setting aside the order of the

appellant court and restoring the suit for decision on

merits. Since the appellant had not appeared when the

suit was taken up for hearing, the same was heard ex 2

parte on 11th of September, 1996 and the suit was

decreed ex parte directing eviction of the appellant in

respect of the suit premises. Subsequent to this, an

application under Order 9 Rule 13 of the CPC was filed at

the instance of the appellant and the said application

under Order 9 Rule 13 of the Code was rejected by the

trial court. Feeling aggrieved by this order of rejection of

the application under Order 9 Rule 13 of the Code, an

appeal was carried to the appellate court which had set

aside the order of the trial court rejecting the application

under Order 9 Rule 13 of the Code and restoring the suit

for fresh decision on merits in accordance with law.

Against this order of the appellate court, a revision was

filed before the High Court and a learned Judge of the

High Court exercising revisional power had set aside the

order of the appellate court and restored the ex parte

decree for eviction passed against the appellant. Feeling

aggrieved by the order of the High Court, restoring the ex

parte decree for eviction, this special leave petition was

filed which, on grant of leave, was heard in presence of

the learned counsel for the parties.

3

3. We have heard the learned counsel for the parties and

examined the impugned order as well as the orders of the

appellate court and the trial court. From a plain reading

of the impugned order, it would be evident that the High

Court in its revisional jurisdiction had interfered with the

findings of fact arrived at by the appellate court restoring

the suit for eviction. It is well settled that the High Court,

in revision, is not entitled to interfere with the findings of

the appellate court, until and unless it is found that such

findings are perverse and arbitrary. We have carefully

examined the impugned order of the High Court as well

as the order of the appellate court. From a reading of the

order of the appellate court and the order of the High

Court, we cannot come to this conclusion that it was

open for the High Court to interfere with the order of the

appellate court when no perversity or arbitrariness could

be found in the findings of the appellate court. In view of

the discussions made hereinabove, we are, therefore, of

the view that the High Court was not justified in

interfering with the findings of the appellate court

restoring the suit in the exercise of its revisional power. 4

4. Accordingly, the impugned order is set aside. The trial

court is directed to dispose of the suit as early as

possible preferably within six months from the date of

supply of a copy of this order to it without granting any

unnecessary adjournments to either of the parties.

5. For the reasons aforesaid, the impugned order is set

aside. The application under Order 9 Rule 13 of the CPC

filed by the appellant stands allowed.

6. Accordingly, the appeal is allowed to the extent indicated

above. There will be no order as to costs.

.............................J [Tarun Chatterjee]

New Delhi; ............................J. August 04, 2009. [R.M.Lodha]