RANUBALA BISWAS & ANR. Vs. MANGALABALA SARDAR

JUDGEMENT

(1.) In this revisional application, the order dated 7.6.95 passed by the Assistant District Judge, 10th Court, Alipore in Misc. Appeal No. 134 of 1992 thereby affirming the order No. 80 dated 7.3.92 passed by the learned Munsif, 5th Court, Alipore in Misc. Case No. 22 of 1986 has been under challenge.

(2.) Smt. Mangalabala Sardar, the opposite party herein filed the Title Suit No. 97 of 1979 against the petitioners in the 5th Court of Munsif, Alipore, District South 24 Parganas praying for recovery of khas possession from the defendants who were described as licensees. In the cause title of the plaint of the aforesaid suit, the petitioner No. 1 was described as Smt. Ranubala Mondal, widow of late Ananta Mondal and the petitioner No. 2 was described as Ajoy Mondal, son of late Ananta Mondal. The suit was decreed ex parte and the petitioners were dispossessed with the help of police in execution of the said decree on 5.3.81 Having come to know of the ex parte decree on the basis of Information Slip received by the petitioners in April 1986, an application under Order 9 Rule 13 C.P.C. was filed by the petitioners for setting aside the ex parte decree. The learned Munsif by his Order No. 80 dated 7.3.92 dismissed the Misc. Case No. 22 of 1986 by holding that the application was barred by limitation. In appeal, the learned Assistant District Judge, 10th Court, Alipore by its order dated 7.6.95 affirmed the order of dismissal passed by the learned trial Judge. In the present application, the aforesaid order passed by the Assistant District Judge has been impugned. On perusal of the materials-on-record and the judgments of the Court below it appears that in the application under Order 9 Rule 13, the petitioner described herself as Smt. Ranubala Biswas and in Paragraph 8 of the petition she stated that the plaintiff filed the aforesaid Title Suit against one, Smt. Ranubala Mondal instead of Smt. Ranubala Biswas, wife of late Shib Narayan Biswas with an ulterior motive suppressing the materials fact though it is within the knowledge of the plaintiff that the petitioner's name is Smt. Ranubala Biswas, wife of late Shib Narayan Biswas. She submitted in Paragraph 9 that she got married with Shib Narayan Biswas who died on 6.7.1953 under Hindu Marriage Act and her son Ajoy Biswas was born out of such wedlock. She also traced her title in Paragraphs 10 to 12 of the petition. She further contended that- she did not receive any summons and came to know of the suits on getting Information Slip from the Court in April 1986. In the written objection excepting a bare denial the plaintiff did not controvert the petitioner's case that the petitioner was never married to Shib Narayan Biswas nor that Ajoy Biswas was the son of Shib Narayan Biswas. In evidence Ranubala Biswas examined herself as PW-1. She was not cross-examined on the point that the cause title of the plaint describing her Ranubala Mondal was correct. Prima facie appears that the petitioner's claim that she was the wife of Shib Narayan Biswas has remained un-controverted. So, even if summons were sent in the name of Ranubala Mondal and Ajoy Mondal in accordance with the cause title of the plaint, the petitioners are not under obligation to attend the Court in response to the summons which were allegedly served upon them. The learned Munsif placed the onus upon the petitioner to prove that she was Ranubala Biswas and not Ranubala Mondal. The learned Appellate Court disbelieved the petitioner's case on the ground that the certificate of marriage was not produced. The petitioner filed a petition under Order 41 Rule 27 C. P. C. for production of certificate of marriage which was found missing at the time of hearing of the Misc. Case before the learned Munsif but the learned Appellate Court rejected the prayer as there was no material-on-record I to show that the same was lost. The learned Appellate Court found that the delivery of possession was taken on 30.1.86 (Exbt.- B) but the petitioner/appellant before him came to know of the ex parte decree only on 5.3.86 when she was driven out forcibly. The application for restoration was not accompanied with an application under Sec. 5 of the Limitation Act. The learned Appellate Court has affirmed the finding of the learned Munsif that Ajoy Biswas has got no locus standi to file the Misc. Case. With a note of astonishment the learned Appellate Court has observed:-

(3.) Such a conclusion is a result of not going through the petition carefully. In Paragraph 1 of the application under Order 9 Rule 13, it has been categorically stated:-