JAHAR DEY Vs. BROJESHWARI SAHA

JUDGEMENT

(1.) This revisional application is directed against the Order dated 9-9- 1999 passed by Shri S. K. Prasad, Civil Judge (Senior Division), ninth Court, Alipore in Misc. Appeal No. 148 of 1997. By the said order the learned Judge dismissed the Misc. Appeal and confirmed the Order No. 55 dated 17-7-1993 passed in Title Suit No. 394 of 1985 of the Court of Second Munsif at Alipore.

(2.) The plaintiff opposite party instituted a suit for eviction of the present petitioner from the suit property mainly on the ground of default in payment of monthly rent since Sept. 1984. The defendant petitioner entered appearance and filed application under Sections 17(1) and 17(2) of the West Bengal Premises Tenancy Act. On 21-3-1989 the suit was heard ex parte and decreed in favour of the plaintiff. In 15-9-1990 the defendant petitioner filed an application under Order 9, Rule 13 of the Code of Civil Procedure alleging inter alia, that he was not properly informed of the date of hearing by his learned advocate and accordingly, he explained that he had sufficient cause for non appearance when the suit was called on for hearing. It was also pointed out that he was not a defaulter in payment of rent as the rent was regularly tendered to the Office of the Rent Controller, Calcutta. A separate application under Section 5 of the Limitation Act was filed after two days of presentation of the application under Order 9, Rule 13 of the Code praying for condonation of delay. The trial Court by Order No. 59 dated 17-7-1993 took up both the applications under Order 9, Rule 13 of the Civil Procedure Code and Section 5 of the Limitation Act for hearing and rejected both the application on contest by a single order with the finding that the defendant petitioner failed to explain the delay as mentioned in the application under Order 9, Rule 13 of the Civil Procedure Code and also under Section 5 of the Limitation Act.

(3.) . Against the said Order No. 59 dated 17-7-1993, the defendant petitioner initially filed Civil Revision Case No. 224 of 1993 before the District Judge , Alipore and it was admitted for hearing. In course of hearing of that revisional application before the Second Court of Additional District Judge, Alipore it was detected that Order No. 59 dated 17-7-1993 was an appealable order and ultimately keeping in view the submissions made by the learned advocates of rival parties, the order was passed on 12-3-1997 allowing the withdrawal of the civil revisional application with liberty to file proper proceeding against the said order. Subsequently, Misc. Appeal No. 148 of 1997 was filed with a delay of 338 days and that delay was condoned and the Misc. Appeal was taken up for hearing. Thereafter the impugned order was passed dismissing the Misc. Appeal with the finding that the defendant petitioner failed to prove sufficient cause of his non appearance when the suit was called on for ex parte hearing.