RENU PROVA PAUL Vs. SANNYASI CHARAN GHOSH

JUDGEMENT

(1.) In the instant case one Sannyasi Charan Ghosh by filing an application has prayed for recalling and/or setting aside the impugned judgment and decree dated 30.1.2004 passed by the Hon'ble Judge of this Court in S.A. No. 231 of 1999 upon condonation of delay.

(2.) After going through the materials on record and also upon hearing the learned Advocate appearing for the present Petitioner it could be detected that initially the Petitioner instituted a suit being T.S. No. 124 of 1982 before the learned Civil Judge (Senior Division), 1st Court, Alipore against the opposite parties for specific performance of contract. In the said suit, opposite party No. 1 entered appearance and contested the suit by filing a written statement and ultimately the learned Trial Judge upon hearing the learned Lawyers for the parties concerned was pleased to dismiss the suit on 23.3.1993. Thereafter, the Plaintiff-Petitioner being aggrieved preferred an appeal being Title Appeal No. 165 of 1993 which came up for hearing on 4.4.98 before the learned Additional District Judge, 7th Court, Alipore, when the learned Judge upon hearing the learned Lawyers of both sides was pleased to allow the said appeal and set aside the judgment and decree dated 23.3.93 passed by the learned Trial Court. Subsequently, the aggrieved opposite party preferred the second appeal being S.A. No. 231 of 1999 challenging the aforesaid judgment and decree dated 4.4.98 and the said second appeal appeared for admission hearing on 9.2.99 before Their Lordships Hon'ble Justice N.K. Mitra and Hon'ble Justice B.M. Mitra (as Their Lordship then were) when Their Lordships after hearing the learned Advocate for the Appellant were pleased to admit the appeal. Ultimately, on 12.12.2008 the Petitioner came to know that the aforesaid appeal had already been disposed of by the Hon'ble Court. The learned Advocate appearing for the Petitioner after making necessary enquiry and search gathered information that the aforesaid appeal came up for hearing on 30.1.2004 before His Lordship Hon'ble Justice Amitava Lala (as His Lordship then was), when His Lordship was pleased to take up the appeal for bearing and allowed the same ex parte upon formulating the following substantial questions of law:

(3.) It has been contended on behalf of the Petitioner that at the time of admission of the second appeal no substantial questions of law were formulated by the Hon'ble Court. However, at the time of final hearing of the appeal aforesaid substantial questions of law were formulated by the Hon'ble Court in absence of other side. Further it may be pointed out that at the time of formulation of the substantial question of law as well as for hearing of the appeal, none appeared on behalf of the Plaintiff-Respondent/ Petitioner on 30.1.2004. It may be pertinent to point out that since the substantial questions of law were formulated on 30.1.2004 notice was required to be served upon the opposite party. The Petitioner immediately after coming to know about the ex parte judgment and decree passed in the instant appeal approached the learned Advocate who advised him to file the instant application for recalling and/or setting aside the ex parte judgment and decree dated 30.1.2004 passed by the Hon'ble Court for the purpose of obtaining an opportunity to contest the appeal. Ultimately on 16.12.2008 the Petitioner came up before this Court with the present application seeking condonation of delay of 1780 days for recalling the ex parte judgment and decree dated 30.1.2004.