MAYA RANI CHOWDHURY Vs. SUKUMAR GHOSH

JUDGEMENT

(1.) In spite of service of notice the respondent has not turned up to contest the instant appeal. Affidavit-of-service be kept with the record. Since the respondent has not turned up I have no other alternative but to dispose of the appeal ex parte.

(2.) It is very often experienced by this Court that the First Court of Appeal very often takes the easy route to dispose of a time-barred appeal by rejecting an application under Section 5 of the Limitation Act. This trend should not only be deprecated but the learned Judges in First Appellate Court should revisit and relook the matter that this will unnecessarily add to multiplicity of proceeding because if this Court finds that the application under Section 5 of the Limitation Act was rejected without considering the facts and circumstances as well as the legal principles set out in plethora of decisions by the Hon'ble Supreme Court and various High Courts, this Court will no other alternative but to allow the appeal by allowing the application under Section 5 of the Limitation Act and directing the First Court of appeal to hear out the appeal on merit. This may in turn follow another second appeal filed by this Court by an aggrieved party who will be defeated in the appeal. Therefore, the intention of the Courts should be to dispose of a lis in contested manner.

(3.) Coming to the background leading to filing of the instant appeal, suffice it to record that the plaintiff/appellant filed Title Suit No. 122 of 1989 against the defendant/respondent praying for eviction, recovery of khas possession and other consequential reliefs claiming, inter alia, that the defendant was a tenant under him at a monthly rental of Rs. 140/- payable according to English calender month. The said suit for eviction was filed on the ground of default, reasonable requirement, violation of Section 108 of the Transfer of Property Act etc.