Renuka
Das Vs. Maya Ganguly & ANR. [2009] INSC 1381 (4 August 2009)
Judgment
NON
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL
APPEAL NO.5074 OF 2009 [Arising out of SLP) No.21608 of 2008] Renuka Das ...
.Appellant VERSUS Maya Ganguly & Anr. ...Respondents
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.
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.
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]
............................J
New Delhi
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