In an application for recalling of an ex parte decree, the court is entitled to consider as to whether or not the defendant has a plausible defence to the plaintiff’s claim and the defendant is obliged to disclose the same in the recalling application.
Application for recalling of an ex parte decree
In the High Court At Calcutta
Ordinary Original Civil Jurisdiction Original Side
Before : The Hon’ble Justice Arijit Banerjee
Judgment On : 10.06.2016
GA 3031 of 2015 CS 271 of 2014
Prabha Agarwal -Vs.- Aditi Oil Mill
For the petitioner/defendant : Mr. S. Banerjee, Adv. Ms. S. Majumdar, Adv. For the respondent/plaintiff : Mr. N. Dasgupta, Adv. Mr. R. L. Mitra, Adv.
Arijit Banerjee, J.
(1) The defendant in the suit has taken out this application for recalling the judgment and decree dated 15 June, 2015 passed in the suit. The decree was passed ex parte when the suit appeared in the undefended list since the defendant had failed to file its written statement.
(2) Ld. Counsel for the plaintiff has taken a preliminary objection to the maintainability of the application. He contended that the decree was completed, perfected, drawn up and filed prior to the instant application being filed and as such this Court has no jurisdiction to entertain the instant application for recalling of the decree. On merits of the application, Ld. Counsel contended that the explanation given by the defendant for not filing the written statement and/or not being able to contest the suit is unacceptable and as such the application should be dismissed.
(3) Two points, therefore, arise for consideration of this Court in the instant application.
Firstly, whether or not this Court retains the jurisdiction to entertain the instant application after completion, perfection and filing of the decree.
Secondly, if it be held that this Court has jurisdiction to entertain the application, has the defendant made out a sufficient cause for recalling of the decree?
(4) On the first point of maintainability, Ld. Counsel for the plaintiff relied on a decision of a Division Bench of this Court in the case of
M/s. Nanalal M. Verma & Co. (Gunnies) P. Ltd. v. Gordhandas Jerambhai, AIR 1965 Cal 547
In that case a suit was placed in the special list under Chapter X Rule 35 of the Original Side Rules of this Court and notice was served on the plaintiff’s solicitor. On the prayer of the Solicitor for adjournment, the case was adjourned and placed in the next special list. On the adjourned dated no one on behalf of any of the parties appeared and the suit was struck out. The order dismissing the suit was drawn up and filed and only thereafter an application was made for setting aside the dismissal order. The said application was dismissed. The appeal against such dismissal of the application was rejected on the ground that the order was not appealable. In that context, the Hon’ble Division Bench observed that the order of dismissal of the plaintiff’s application for setting aside the order of dismissal of the suit was justified on merits. When the order dismissing the suit had been drawn up and filed, the jurisdiction of the court came to an end and, thereafter, it had no power to reconsider the matter on the application made by the plaintiff to set it aside. In paragraphs 14, 15a and 16 of the judgment, the Hon’ble Division Bench observed as follows:-
“14. The same view was taken in our court by Buckland J., in an application to vacate an order dismissing a suit for default under Chapter X Rule 36 (now Rule 35) of the Original Side Rules. His Lordship was of the view that the principle that where an order had been perfected the Judge had no power to re-consider the matter applied equally well to an order of dismissal for default under this Rule. The jurisdiction comes to an end once the order is completed: vide
Sarupchand v. Madhoram, AIR 1925 Cal 83
15a. This rule is in consonance with the principle that where an order has not been perfected the Judge has power to reconsider it. The Judge has also the power to vary an order which has been drawn up; but not completed or filed:
In the Matter of Steel Construction Co. Ltd., 39 Cal WN 1259
But once the order has been settled, passed and entered by the Registrar it can be varied only when it contains an adjudication on a matter on which the court never adjudicated thus bringing it into accordance with the order actually pronounced:
Mulchand v. G.R. Martindale, AIR 1928 Cal 756
16. It is clear, therefore, that the learned trial Judge in the instant case had no jurisdiction to interfere with the order he had made on the 30th August, 1961, which was drawn up and filed on the 14th December, 1961, on an application made on the 24th January, 1962.”
(5) Ld. Counsel for the plaintiff also drew this Court’s attention to a decision of a Division Bench of this court in the case of
Castron Technologies Limited v. Castron Mining Limited, (2013) 3 CLT 592 (HC)
wherein at paragraph 17 of the judgment the Hon’ble Division Bench after noting several decisions including the decision in the case of M/s. Nanalal M. Verma (supra) held that where a suit is dismissed and the decree is drawn up, completed and filed it could be restored if an application has been filed within the period of limitation in view of the inherent power of the Court. Ld. Counsel submitted that in the instant case the defendant did not file the application within the period of limitation i.e. thirty days and as such the application is not maintainable.
(6) Ld. Counsel for the plaintiff then submitted that the power to recall an order would be exercised by the Court in very limited situations and if a remedy by way of appeal or revision is available but not taken recourse to, an application for recalling of a judgment or order should be rejected. In this connection Ld. Counsel relied on a decision of the Hon’ble Supreme Court in the case of