SANDHYA DAS Vs. PALTU SAHA

JUDGEMENT

(1.) This application is at the instance of the plaintiff and is directed against the order dated October 27, 2006 passed by the learned Additional District Judge, Second Court, Alipore in Misc. Appeal No.93 of 2005 arising out of the order no.130 dated February 5, 2005 passed by the learned Civil Judge (Senior Division), Third Court, Alipore in Misc. Case No.27 of 1997.

(2.) The short fact of the case is that the plaintiff is the owner of the premises in suit as described in schedule of the plaint and the father of the opposite parties was inducted as a tenant in respect of the premises in suit at a rental of Rs.200/- per month payable according to English calendar month. The tenant was defaulter in payment of rent. The plaintiff also required the suit premises for his own use and occupation and for that reason he filed the suit for ejectment and other reliefs being the Title Suit No.120 of 1988. In that suit, the opposite parties, heirs of the original tenant, appeared by filing the vakalatnama. They submitted other necessary applications, such as, petition under Sections 17(1) & (2) of the West Bengal Premises Tenancy Act, 1956, written statements, etc. Ultimately, the defendants/opposite parties did not contest the suit and as a result the suit was decreed ex parte on September 12, 1996.

(3.) Thereafter, the opposite party no.1 alone filed an application under Order 9 Rule 13 of the Code of Civil Procedure along with an application under Section 5 of the Limitation Act for condonation of delay. In that application, the opposite party no.1 has stated that he is a physically handicapped person. He is also suffering from epilepsy and so he executed a power of attorney in favour of his brother, opposite party no.2 who was looking after the said suit. But he colluded with the plaintiff and allowed the suit to be decreed ex parte. So, he filed the Misc. Case No.27 of 1997 along with an application under Section 5 of the Limitation Act for condonation of delay praying for setting aside the ex parte decree.