No. 5/07.10.2009.

HON’BLE JUSTICE SRI A. CHAKRABARTI, PRESIDENT.

Appellant through Mr. N. R. Mukherjee, the Ld. Advocate and Respondent through Mr. Debabrata Roy, the Ld. Advocate are present.  Heard Mr. Mukherjee, the Ld. Advocate for the Appellant and Mr. Roy, the Ld. Advocate for the Respondent.

Grievance of the Appellant is that the impugned judgement was passed recording presence of the O.P’s Ld. Advocate.  The body of the judgement also recorded consideration and contentions of the O.P.  The Appellant contends that Order Nos. 14, 15 & 16 of the Forum below show that O.P. was not present on the date of hearing.  Contention has been made by the Appellant that Order No. 15 dated 20.03.2009 contained a correction of the date fixed and the correction also bears a signature.  The grievance of the Appellant is that this alteration of date was incorporated but no notice was given to the O.Ps and that is why on the date of hearing O.Ps could not be present.

Mr. Roy, the Ld. Advocate for the Complainant – Respondent contends he is ready to argue on merit but with regard to the correction, no notice of the O.Ps and consequential absence, no argument can be advanced by the Complainant.

We appreciate the stand of the Complainant.  But from the record we are convinced that the date 30.03.2009 was fixed on alteration of the date earlier fixed.  Nothing is appearing from the records that parties were given notice of such correction.  The next order No. 16 dated 30.03.2009 records presence of the Complainant but absence of the O.P. and also records conclusion of the argument.  Apparently the impugned judgement contains a wrong endorsement that O.P. was present through Ld. Advocate.  In the circumstance we are of the opinion that we are deprived of opportunity of a proper judgment of the Forum below on application of mind.  We also find that the O.Ps were deprived of the opportunity of argument by reason of alteration of date without intimation to O.Ps.  Therefore, we allow the appeal and set aside the impugned order No. 18 dated 24.04.2009 and remand the matter to the Forum below for decision on merit granting the parties opportunity of hearing.  By consent of parties we fix 05.11.2009 for appearance of the parties before the Forum at Malda and as both the parties are represented here no further notice is required to be served as regards aforesaid date.  The Forum below will fix date of hearing on the said date after recording presence of the parties.  The Forum below will dispose of the matter in accordance with law expeditiously preferably within a period of one month from the date of receipt of the record. 

Office is directed to send back the LCR to the Forum below along with a copy of this order forthwith.